Federal Court Says Office Of Legal Counsel Must Proactively Release Opinions Covering Interagency Disputes

from the narrow-victory-but-possibly-more-wins-on-the-way dept

The federal government's Office of Legal Counsel (OLC) tells government agencies what they can and can't do under existing law. Its interpretation of these laws may vary significantly from how they've been interpreted by courts. The OLC has been asked to justify everything from warrantless searches to extrajudicial killings. The bespoke law interpretations that justify these actions are then withheld from the public -- often for decades at a time.

The OLC has refused to turn these over to FOIA requesters, citing a number of FOIA exemptions. It does this with older decisions as well -- ones Congress has said must be released to the public. 2016's amendment of the Freedom of Information Act prohibits agencies from withholding "deliberative" records -- which is much of what the OLC produces -- that are over 25 years old. The OLC violated this change in the law immediately, prompting a lawsuit by the Knight Institute that the Institute ultimately won.

But it wasn't the only lawsuit brought against the OLC by the Knight Institute over FOIA violations. The OLC was also sued for violating the "reading-room provision," which obligates agencies to process and release certain documents, even in the absence of a FOIA request for these documents. The OLC has refused to do this. The court said the OLC's refusal to comply was good and lawful, but only for some subsets of its document stash. The litigation continued to determine what was exempt and what was subject to proactive release.

In October 2017, the district court granted the government’s original motion to dismiss but afforded the Campaign for Accountability an opportunity to focus more narrowly on specific categories of OLC opinions. The Knight Institute filed an amended complaint highlighting several categories of OLC opinions — those (i) resolving interagency disputes; (ii) interpreting nondiscretionary legal obligations; (iii) finding particular statutes unconstitutional; and (iv) adjudicating or determining individual rights.

The court has now handed down its ruling [PDF] and it agrees with the Knight Institute and its co-plaintiff, Campaign for Accountability (CfA) on one category of OLC opinions:

[F]or now, the Court finds that CfA’s amended complaint contains a plausible allegation that OLC is required to make its opinions that resolve inter-agency disputes available for “public inspection” under section 552(a)(2) of the FOIA, for the reasons explained above, and that the other categories of OLC opinions identified in the amended complaint do not plausibly violate the FOIA’s reading-room provision.

The court says these documents are likely "final opinions" (which would make sense, since they "resolve disputes") and subject to the proactive release obligations contained in the "reading-room provision." This could prompt a flood of releases. The Knight Institute estimates these resolution opinions make up about a quarter of all opinions sent by the OLC to other agencies.

Then again, it may not result in much of anything. The OLC spent most of the Obama years watching its workload dwindle as agencies became more worried about the possibility of legal opinions being released to FOIA requesters than with ensuring their actions were lawful. OLC opinions dropped from ~30/year at the beginning of Obama's presidency to less than 10/year by 2015. The end result of years of litigation could be a small handful of opinions that won't do much to inform the public about how the OLC interprets existing laws.

But the precedent set here is worth celebrating. An entire category of OLC opinions has been declared subject to proactive release by the Office. And that's a much-needed improvement.

Filed Under: foia, legal interpretations, office of legal counsel, olc, secret law, transparency

Office Of Legal Counsel Sued For Refusing To Turn Over Legal Memos Congress Said Aren't Exempt From FOIA Law

from the OLC-runs-a-tight-memory-hole dept

Another lawsuit has arisen from the Office of Legal Counsel's ongoing refusal to allow the general public to see its legal memos. The OLC claims these are categorically exempt from FOIA law because they constitute "deliberative" documents and/or are protected by attorney-client privilege.

But they're not "deliberative." In some cases -- if not many cases -- the OLC's guidance tells government agencies what they can and can't do legally, providing justification for warrantless searches, extrajudicial drone strikes, and lots of domestic surveillance.

In essence, the OLC is creating secret laws. Stupid amateurs (meaning the citizens who pay for the office that refuses to speak with them on an FOIA basis) apparently have no business knowing what the government has decided its okay for it to do.

Once in a long while, a FOIA lawsuit forces a legal memo out of the office's hands. But for the most part, an unknown number of legal opinions remain locked up out of the reach of the citizens the government is supposed to be accountable to.

The Knight First Amendment Institute is hoping a lawsuit will finally trigger a document dump from the opacity-prone OLC. FOIA law has changed in recent years, but the OLC has apparently chosen to ignore this.

In 2016... Congress amended the Freedom of Information Act to prohibit agencies from withholding as “deliberative” records more than 25 years old.

[...]

On February 15, 2019, the Knight Institute submitted a request to the OLC for all of its formal written opinions issued prior to February 15, 1994. To date, the government has failed to comply with the request.  

Since Congress has said older opinions can't be considered "deliberative" any longer, it's assumed the OLC will now claim these documents are protected by attorney-client privilege. The problem for litigants is the OLC's unending relationship with the government agencies it advises. These attorneys and clients are eternally inseparable.

The OLC can't even be bothered with half-assed compliance. This goes hand-in-hand with its barely-there transparency efforts over the past few decades.

As the lawsuit [PDF] points out, the OLC has been (very selectively) releasing decades-old legal opinions. But even with 40+ years lead time, the OLC still can't bring itself to release more than a small percentage of its secret law stuff.

In 1977, the OLC began to publish a volume of selected opinions given “their value as precedents and as a body of executive law on important matters.” According to the foreword to the first volume, however, approximately 75 percent of the 1977 opinions were excluded from publication.

After 1977, the OLC stopped revealing how many opinions were excluded from its volumes. Some OLC volumes note that a “significant” number were excluded. These statements are consistent with the views of at least one former OLC official, who has stated that the “published opinions are only the tip of the iceberg.” For example, the same OLC official noted that the office “gave 625 opinions to outside agencies in 1991.” But the 1991 volume of OLC opinions published only 13 opinions, or about 2%.

More recently, the Sunlight Foundation obtained the OLC’s internal list of OLC opinions issued between 1998 and 2012. Comparing the list with the OLC opinions that the office had made public either through its volumes or through FOIA productions, the Sunlight Foundation found that the OLC kept almost 40 percent of the office’s opinions secret over that period.

Hopefully, this litigation will force the agency to take a bright line approach to its legal opinions. They're given the full weight of the law by the agencies that comply with them, and yet the OLC continues to claim these are just suggestions and attorney-client conversations. But they're far more than that. They're laws the public can't read, can't comply with, and can't seek to have changed if they disagree with them.

Filed Under: congress, foia, office of legal counsel, olc
Companies: knight institute

Agency Watchdogs Ask Congress To Roll Back Decision Allowing Agencies To Withhold Documents From Oversight Entities

from the a-new-low-in-sensitivity-training dept

FBI. DEA. NSA. CIA. DHS. TSA. All these acronyms (and more) participate in activities that can (and do) have negative effects on Americans' civil liberties. But that's OK, says the government, because we have oversight. This assertion just simply isn't true. The Snowden leaks proved what oversight existed was beholden to the NSA and frequently put itself between the agency and legislators on the outside of the inner circle in order to keep its secrets protected.

Elsewhere, the entities charged with providing oversight for government agencies -- the various Inspector General's offices -- were finding themselves unable to pursue their duties because the agencies they watched refused to cooperate with their investigations. Michael Horowitz, the DOJ Inspector General, frequently expressed his displeasure with the DEA and FBI, both of which refused to provide him with the documents he was seeking.

Over at the CIA, Inspector General David Buckley performed his investigation of the alleged hacking of Senate staffers' computers. He found the allegations to be true. The CIA responded by discrediting his report and performing its own internal audit, which naturally found the agency to be blameless and the Senate at fault for supposedly abusing its access to CIA documents. Buckley retired. The CIA has yet to replace him.

As if things couldn't get any worse, the Office of Legal Counsel decided the best route for effective oversight was to hand over control to the agencies being overseen. On July 20th, it issued a decision that said Inspectors General needed to seek permission from the agencies under their purview for access to sensitive documents. If the agencies turned them down, too bad. They'd just have to do without.

The IGs -- representing 72 government agencies -- have sent a letter to Congress asking them to overturn the OLC's decision. (via Unredacted)

Despite the unequivocal language of Section 6(a) of the IG Act, the OLC opinion concludes that it does not entitle the DOJ-IG to obtain independent access to grand jury, wiretap, and credit information in the DOJ’s possession that is necessary for the DOJ-IG to perform its work. Indeed, the OLC opinion concludes that such records cannot be obtained by the DOJ-IG pursuant to the IG Act, and can only be obtained in certain – but not all – circumstances through provisions in the specific laws related to those records. Further, the opinion provides that only the Department of Justice itself decides whether access by the DOJ-IG is warranted – placing the agency that the DOJ-IG oversees in the position of deciding whether to grant the Inspector General access to information necessary to conduct effective and independent oversight. Requiring an Inspector General to obtain permission from agency staff in order to access agency information turns the principle of independent oversight that is enshrined in the IG Act on its head.

The OLC opinion’s restrictive reading of the IG Act represents a potentially serious challenge to the authority of every Inspector General and our collective ability to conduct our work thoroughly, independently, and in a timely manner. Our concern is that, as a result of the OLC opinion, agencies other than DOJ may likewise withhold crucial records from their Inspectors General, adversely impacting their work. Even absent this opinion, agencies such as the Peace Corps and the U.S. Chemical Safety and Hazard Investigation Board (CSB) have restricted or denied their OIGs access to agency records on claims of common law privileges or assertions that other laws prohibit access. Similarly, the Department of Commerce denied its Inspector General (Commerce-IG) access to agency records that were needed for the Commerce-IG to complete an audit of agency operations because agency counsel had concluded, based on guidance that agency counsel said came from OLC, that it might be a violation of another federal statute to make the records available to its Inspector General. As a result, the Commerce-IG could not complete its audit.

In other words, things were already bad. Now, they're impossible. These agencies were already doing everything they could to thwart their oversight. Now, the OLC has given them permission to stonewall every single investigation that requires the access to "sensitive" agency documents -- which would be a great majority of them.

The letter goes on to point out that the OLC's decision creates a smokescreen that will have serious repercussions for years to come.

Without timely and unfettered access to all necessary information, Inspectors General cannot ensure that all government programs and operations are subject to exacting and independent scrutiny. Refusing, restricting, or delaying an Inspector General's independent access may lead to incomplete, inaccurate, or significantly delayed findings and recommendations, which in turn may prevent the agency from promptly correcting serious problems and pursuing recoveries that benefit taxpayers, and deprive Congress of timely information regarding the agency's activities. It also may impede or otherwise inhibit investigations and prosecutions related to agency programs and operations.

The OLC's decision is astounding, and should be undone as swiftly as possible. There's a lot of room for abuse in many agencies, and one of the only things acting as a check against this are the IGs. The assurances that there is sufficient oversight are hollow. There was very little oversight to begin with. With this determination in place, there's almost none. The denied access can likely be challenged, but time is often of the essence, and weeks or months of discussion over the release of documents can put a lot of space between badly-behaving agencies and whatever scandal they're attempting to ride out.

The OLC had decided government agencies shouldn't be accountable to the public, and its excuse is "security." It's being left up to agencies to decide what information is too "sensitive" to share with their overseers. And it will be evidence of screwups, quasi-legal activities and other abuses of power that receive this label first.

Filed Under: cia, dea, dhs, doj, fbi, inspector general, inspectors general, nsa, office of legal counsel, olc, transparency, tsa, watchdogs

DOJ Asserts Its Desire To Live In A Fantasy World Where Publicly-Disclosed Documents Haven't Been Publicly Disclosed

from the a-place-between-bureaucracy-and-secrecy-we-call...-the-The-Twilight-Zone dept

The DOJ's Office of Legal Counsel (OLC) is still trying to keep its memos related to extrajudicial drone killings a secret. The push for secrecy isn't surprising. The surprising part is how much the DOJ continues to fight this lost battle.

Quick recap: the New York Times and ACLU sued the DOJ in an FOIA suit for the release of the OLC's drone-killing memo. The DOJ, of course, maintained it needed to be kept secret for national security reasons and because it was "legal advice," something lying outside the confines of the FOIA law.

The district court saw things differently, mainly because the government -- through officials named and unnamed -- had openly discussed the contents of this memo several times. The government had also confirmed drone targets, drone operation areas and engaged in what the court referred to as "an extensive public relations campaign" to convince the public of the "rightness" of its killer drone program.

So, the court ordered the release of the memo. And then ordered the release of other, similar memos. The DOJ obviously wasn't happy with this decision, but its officials' decision to talk up the legality of drone killing over a period of several years undercut its arguments that the memos were too "secret" to be publicly disclosed.

But the DOJ won't stop trying to reclaim the secrecy it gave away so frequently. Jameel Jaffer at Just Security noticed a particularly disingenuous bit of barn door-shutting being performed by the agency in its brief to the Second Circuit Court. [pdf]

In a footnote, the government provides this take on the court’s publication of the July 2010 OLC memo (which the government calls the “OLC-DOD Memorandum”):

For purposes of preserving its argument for potential further review, the government respectfully notes its disagreement with this Court's prior ruling that the government has officially disclosed and waived privilege for certain legal analysis contained in the OLC-DOD Memorandum. As set forth in the government's briefs in the earlier appeal, the public disclosures and statements relied on by the plaintiffs did not meet the standard for official disclosure or waiver of applicable privileges. We further note that the Court' s release of the OLC-DOD Memorandum and its order compelling disclosure by the government of additional information would not themselves constitute an independent official disclosure or waiver by the government that would strip protection from otherwise exempt information and material.

As Jaffer notes, the first two sentences have arrived too late to serve any purpose for the DOJ. It had a chance to petition the Supreme Court on this ordered disclosure, but that window open and closed without the DOJ taking any action. The last sentence, however, is where the DOJ heads right off the rails -- at least in terms of logic or credibility.

But it’s the last sentence of the footnote that is truly remarkable — unreal, one might even say. Sure, the government says, the Second Circuit published the July 2010 memo, and sure, it published the memo after having concluded that the government had officially acknowledged the memo’s contents, and after the government declined to file a petition for certiorari to the Supreme Court. But so what?, the government says. We don’t consider the Second Circuit’s publication of the memo to have been an official disclosure. As far as we’re concerned, the government says, the memo is still secret.

Yes. The government is arguing that even though documents have been disclosed thanks to a court order, they haven't been disclosed because the DOJ didn't want them disclosed. That's the argument. Because the DOJ decide to do it itself, it may as well have never happened. Those requesting copies of this document in the future will be denied, even though the document has already been made public.

When government agencies fight for secrecy, logic is immediately sent to the front line of the battlefield to die a swift and brutal death. We've seen this sort of behavior far too frequently, whether it's the government ordering employees not to view leaked documents because they're somehow still "secret" or agencies withholding/redacting documents that have already been made public. Over-classification and default secrecy has brought the US government into the realm of surrealism... or at least, more so.

Filed Under: classified, doj, drone, foia, justice department, office of legal counsel, olc
Companies: aclu, ny times

Court Decision Exempts Secret Memo From FOIA, Sets Stage For Future Secret Laws To Go Unchallenged

from the legally-binding-'deliberations?' dept

The "most transparent administration" received another win for continued secrecy, thanks to an appeals court decision that allowed it to continue to withhold a DOJ memo that created an exploitable loophole in consumer data privacy protections.

The document at issue is a classified memo issued by the Office of Legal Counsel on Jan. 8, 2010. A report later that year by the Justice Department’s inspector general at the time, Glenn A. Fine, disclosed the memo’s existence and its broad conclusion that telephone companies may voluntarily provide records to the government “without legal process or a qualifying emergency,” notwithstanding the Electronic Communications Privacy Act.

The EFF has been engaged with the government over the release of this document since 2011, when a district court judge ruled the document was exempt from FOIA requests because it was part of executive branch "internal deliberations." In other words, despite the fact that the OLC memos can be considered legally binding (and exempt those following the memos' advice or instructions from legal repercussions), the memo is not considered "working law." The EFF has argued that these memos are not "deliberative," but are rather secret laws deployed in such a fashion as to avoid being exposed by FOIA requests.

The presiding judge explained his decision with this reasoning.

“Even if the O.L.C. opinion describes the legal parameters of what the F.B.I. is permitted to do, it does not state or determine the F.B.I.'s policy,” Judge Harry T. Edwards wrote in the decision on Friday. “The F.B.I. was free to decline to adopt the investigative tactics deemed legally permissible in the O.L.C. opinion.”

According to the FBI, it did decline to follow the memo's parameters.

The bureau, which has abandoned exigent letters, said that it did not employ the legal theory outlined in the memo when using the letters, and that it had no plans to use it in the future.

But the DOJ's arguments for keeping the memo secret calls the FBI's assertion into question.

During the litigation, the Justice Department also told the court that parts of the memo contained classified information, “highly specific in nature and known to very few individuals,” about a secret intelligence-gathering technique that the F.B.I. is using against “hostile entities.”

Either the FBI is utilizing the memo's legal theories or the memo covers so much ground that the FBI is using something entirely unrelated, making the first statement truthful as far as it extends to exigent letters only.

Judge Edwards' rationale gives the government every reason to utilize the Office of Legal Counsel to provide it with the legal justification it needs to deploy questionable tactics and programs. (Previous OLC memos were used to justify warrantless wiretaps and "brutal questioning of detainees.") The ruling makes it easier for any OLC memo to be exempted from FOIA requests, providing for even more government secrecy.

David Sobel, a lawyer for the EFF, called the ruling “troubling,” describing the office’s memos as a body of “secret law” that the public has a right to know about. He said he hoped the ruling would reinvigorate efforts among some lawmakers to enact a law opening such memos to greater scrutiny outside the executive branch.

“It’s kind of hard to imagine how a different case in the D.C. Circuit is likely to have a different outcome in light of this opinion,” he said.

Because the document remains a secret, its true significance remains a source of speculation. The New York Times says the memo is most likely the legal basis for the CIA's voluntary agreement with AT&T, which allows the agency to search its massive database of international calls (and tip local numbers to the FBI for further investigation). And it's not as if this secret memo is the only tool the government has for demanding data. The FBI may have abandoned "exigent letters" but it's still using National Security Letters to obtain data without a court order. (No mention is made of the FBI's exigent Post-It notes or over-the-shoulder database searches.)

The DOJ is understandably pleased with this decision as it plays to its obfuscatory tendencies. This is also a dubious win for this administration -- and those that follow. Having an in-house agency on tap that can create new laws and interpretations of existing statutes without having to risk having its legally-binding memos scrutinized by the public will be a tool too powerful for many to ignore.

Filed Under: classified, doj, foia, interpretations, legal memos, office of legal counsel, privacy
Companies: eff