Campaign for Accountability v. U.S. Dep't of Justice

• Decision Date: 11 September 2020
• Docket Number: No. 1:16-cv-1068 (KBJ),1:16-cv-1068 (KBJ)
• Citation: 486 F.Supp.3d 424
• Parties: CAMPAIGN FOR ACCOUNTABILITY, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant.
• Court: U.S. District Court — District of Columbia

486 F.Supp.3d 424

CAMPAIGN FOR ACCOUNTABILITY, Plaintiff,

v.UNITED STATES DEPARTMENT OF JUSTICE, Defendant.

No. 1:16-cv-1068 (KBJ)

United States District Court, District of Columbia.

Signed September 11, 2020

Alexander Abraham Abdo, Pro Hac Vice, Jameel Jaffer, Anna Diakun, Pro Hac Vice, Knight First Amendment Institute at Columbia University, New York City, NY, for Plaintiff.

Daniel Stephen Garrett Schwei, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

KETANJI BROWN JACKSON, United States District Judge

Plaintiff Campaign for Accountability ("CfA") has filed an amended complaint that alleges that the Department of Justice's Office of Legal Counsel ("OLC") must make certain specified categories of OLC legal opinions automatically available to the public pursuant to the Freedom of Information Act's ("FOIA's") seldom-litigated reading-room provision. (See Am. Compl., ECF No. 22, ¶ 13 (citing 5 U.S.C. § 552(a)(2) ).) In the wake of this Court's prior conclusion that not all of OLC's opinions qualify for affirmative disclosure under section 552(a)(2) of Title 5 of the United States Code, see generally Campaign for Accountability v. Dep't of Justice ("Campaign for Accountability I") , 278 F. Supp. 3d 303 (D.D.C. 2017), CfA now maintains that the reading-room provision requires affirmative disclosure of at least four types of OLC opinions: those that (1) resolve inter-agency disputes (see Am. Compl. ¶¶ 35–38); (2) interpret an agency's non-discretionary legal obligations (see id. ¶¶ 41–44); (3) "find[ ] that particular statutes are unconstitutional and that therefore agencies need not comply with them" (id. at 18; see also id. ¶¶ 45–46); or (4) adjudicate or determine private rights (see id. at ¶¶ 47–49).¹

Before this Court at present is Defendant OLC's renewed motion to dismiss CfA's amended complaint (see Mem. in Supp. of Def.’s Renewed Mot. to Dismiss the Am. Compl. ("Def.’s Mot."), ECF No. 29-1), which invokes Federal Rule of Civil Procedure 12(b)(6) and argues that CfA's amended complaint still does not plausibly allege that OLC has a legal obligation to disclose any of these categories of opinions under the FOIA (see id. at 19–20), primarily because, in the agency's view, OLC opinions are "legal advice documents [ ] rather than final agency policy decisions" (id. at 22) and do "not regulate private parties[ ]" (id. at 21), so these kinds of agency records do not fall within the ambit of the FOIA's affirmative disclosure provisions (see id. ).² In response, CfA both reiterates its argument that, due to their "binding" and "controlling" nature, all OLC opinions are subject to affirmative disclosure (Pl.’s Opp'n to Def.’s Mot. ("Pl.’s Opp'n"), ECF No. 30, at 18), and asserts that, in any event, the identified categories of OLC opinions satisfy the statutory requirements, because they qualify as either "statements of policy and interpretations which have been adopted by the agency[,]" 5 U.S.C. § 552(a)(2)(B), or "final opinions ... made in the adjudication of cases[,]" id. § 552(a)(2)(A) (see Pl.’s Opp'n at 31–42).

For the reasons explained below, this Court adheres to its prior conclusion that not all—but also not none—of OLC's written opinions must be affirmatively disclosed pursuant to the FOIA's reading room provision, and it further finds that only one of the categories of OLC opinions that CfA has now identified is plausibly included in the classes of records that an agency must affirmatively disclose under section 552(a)(2). In particular, the Court finds that CfA has plausibly alleged that OLC opinions relating to inter-agency disputes are "final opinions ... made in the adjudication of cases[,]" 5 U.S.C. § 552(a)(2)(A), and such opinions may also plausibly be characterized as "statements of policy and interpretations" that have been adopted ex ante by at least one of the disputing agencies, id. § 552(a)(2)(B). The Court considers it implausible that any of the other types of OLC opinions to which CfA points fit into the FOIA's affirmative-disclosure classifications, and thus concludes that CfA has failed to state a claim with respect to those categories of opinions. Consequently, OLC's motion to dismiss CfA's amended complaint will be GRANTED IN PART and DENIED IN PART . A separate Order consistent with this Memorandum Opinion will follow.

I. BACKGROUND

In the initial complaint that was filed in this matter, CfA asserted that all of OLC's written legal opinions were uniformly and categorically subject to disclosure under the FOIA's reading-room provision, section 552(a)(2) of Title 5 of the United States Code. (See Compl., ECF No. 1, ¶ 31.) OLC moved to dismiss CfA's FOIA claim and, in a Memorandum Opinion concerning OLC's motion, this Court held that CfA had not "plausibly alleged that OLC opinions, as a general matter, are subject to the reading-room provision," Campaign for Accountability I , 278 F. Supp. 3d at 321 (cleaned up), and CfA also "ha[d] not identified an ascertainable set of OLC opinions that OLC [ ] withheld from the public and that is also plausibly subject to the FOIA's reading-room requirement[,]" id. at 306. The relevant background for the parties’ FOIA dispute over the characterization and release of OLC opinions is described in detail in this Court's prior Memorandum Opinion, see id. at 306–12, and is incorporated into the instant discussion by reference. This Court will assume familiarity with those background facts moving forward; therefore, only a brief recounting of certain relevant background facts and legal principles is necessary here.

First of all, the reader is reminded that, as a general matter, section 552(a)(2) of Title 5 of the United States Code furthers the FOIA's goal of fostering public access to government records by requiring agencies to act proactively to publish and index certain specified types of documents. In relevant part, the provision states that

[e]ach agency, in accordance with published rules, shall make available for public inspection in an electronic format—

(A) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;

(B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register;

(C) administrative staff manuals and instructions to staff that affect a member of the public;

(D) copies of all records, regardless of form or format—

(i) that have been released to any person under paragraph (3); and ...

(E) a general index of the records referred to under subparagraph (D)[.]

5 U.S.C. § 552(a)(2).

It is clear beyond cavil that the reading-room provision has as its "primary objective [ ] the elimination of secret law." Dep't of Justice v. Reporters Comm. for Freedom of the Press , 489 U.S. 749, 772 n.20, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (internal quotation marks and citation omitted). That is, "[t]he FOIA's reading-room provision ‘represents an affirmative congressional purpose to require disclosure of documents which have the force and effect of law.’ " Campaign for Accountability I , 278 F. Supp. 3d at 307 (quoting N.L.R.B. v. Sears, Roebuck & Co. , 421 U.S. 132, 153, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975) ). And the requirement that certain categories of records be automatically published by the agency that produces them mitigates against the risk of secret law, insofar as it "prevent[s] an agency from subjecting members of the public to a rule that the agency has not publicly announced." Id. (internal citations omitted).

As explained in Campaign for Accountability I , in addition to requiring the disclosure of certain agency records, the FOIA permits an agency to withhold covered documents pursuant to certain statutory exemptions, see 278 F. Supp. 3d at 308 (citing 5 U.S.C. § 552(b)(1)–(9) ), and one of those exemptions—Exemption 5—"correlates with, and sheds light on, the scope of the FOIA's reading-room provision[,]" id . Exemption 5 generally authorizes agencies to withhold "inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency[.]" 5 U.S.C. § 552(b)(5). Moreover, and significantly for present purposes, making a determination that an agency can properly withhold a particular record pursuant to the attorney work-product and deliberative-process privileges that Exemption 5 protects means that the record in question is also not subject to automatic disclosure under the FOIA's reading-room provision. See Campaign for Accountability I , 278 F. Supp. 3d at 322. The reverse is also true: documents that are not properly withheld as privileged under Exemption 5 can be deemed to reflect an agency's working law and, as such, must be affirmatively disclosed under section 552(a)(2). In other words, "if a record can be withheld under Exemption 5, then it is generally not subject to affirmative disclosure under the reading-room provision and vice versa[.]" Id. at 308.

This Court's previous observations about the OLC's authority to provide legal advice to the Executive Branch also warrant restating. This responsibility is "nearly as old as the Republic itself[,]" Citizens for Responsibility & Ethics in Washington v. Dep't of Justice ("CREW II") , 922 F.3d 480, 483 (D.C. Cir. 2019) (internal quotation marks omitted), and "[f]or decades, [OLC] has been the most significant centralized source of legal advice within the Executive Branch[,]" Citizens for Responsibility & Ethics in Wash. v. Dep't of Justice ("CREW I") , 846 F.3d 1235, 1238 (D.C. Cir. 2017) (internal quotation marks and citation omitted). OLC advises the rest of the Executive Branch on behalf of the Attorney General, and it is important to note that "the Attorney General's legal advice to the President and various executive agencies spans a wide range of issues and contexts." Campaign for Accountability I , 278 F. Supp. 3d at 309 ; see also 28 C.F.R. § 0.25(a) (...