A federal judge is mulling whether the Justice Department is defying the law by ignoring an obligation to proactively release legal opinions to the public.
U.S. District Court Judge Ketanji Brown Jackson gave an extensive airing to the issue Tuesday as lawyers battled during a courtroom argument session that stretched to nearly two full hours.
Jackson seemed skeptical about aspects of the lawsuit filed last year by the liberal group Campaign for Accountability. However, she issued no formal ruling and her comments left open the possibility that the organization might get a chance to repackage its case in order to press forward with its demand for access to opinions issued by Justice’s Office of Legal Counsel.
Campaign for Accountability attorney Alex Abdo argued that the Justice Department is failing to comply with a rarely litigated provision in the Freedom of Information Act that obliges agencies to make public "statements of policy and interpretations which have been adopted by the agency."
While a better-known portion of FOIA requires agencies to disclose records upon request, official statements of policy are supposed to be affirmatively released by the agencies even in the absence of any request.
In the 50 years FOIA has been on the books, that has never happened with regard to any Office of Legal Counsel opinion. Instead, since the mid-1970s, OLC has published about 1300 opinions following what it calls a "voluntary" process of deciding which issuances to make public and which to keep under wraps.
"It is instead publishing a subset of…opinions under criteria that have nothing to do with the statutory criteria," Abdo complained.
OLC also sometimes releases opinions in response to FOIA requests, but it insists those releases are "discretionary" and not required by the statute.
Justice Department attorney Daniel Schwei said OLC hasn’t ruled out the possibility that its opinions might qualify for proactive disclosure under FOIA, although he was unable to cite any instance where it had actually occurred. He said this wasn’t surprising since OLC’s opinions did not reflect policy decisions, but offer views on the interpretation of various federal laws, regulations and executive orders.
"That legal advice is still just one of the predecisional impacts," he said.
However, Abdo said the government’s contention that it doesn’t have a policy against affirmative disclosure was a kind of contrivance—in his words "a fiction" — aimed at trying to head off legal challenges like the suit filed last year after the government rebuffed Campaign for Accountability’s request for access to any such records.
Aside from that issue, Jackson seemed troubled by some procedural aspects of the case. Her biggest hang-up appeared to be a lack of specificity in the CFA suit which seeks all legal opinions issued by OLC, without regard to time or subject matter.
"Don’t you have a little bit of a ripeness issue?" Jackson said to Abdo. "It’s up to you to tell me which ones" you’re asking for, she suggested.
Schwei agreed with the judge that the vagueness might present an obstacle to the case moving forward since it wasn’t clear what concrete harm CFA was alleging. "They haven’t identified any actual opinions that have been unlawfully withheld," he noted.
"How can they know that?" Jackson asked, observing that it was a bit bizarre to ask the plaintiffs to provide a list of documents the government is keeping secret.
The judge suggested that categories of records might be good enough. Indeed, Abdo offered some Tuesday. He said some OLC opinions sought by independent agencies are issued only after the agency pledges in advance to abide by the Justice Department’s ultimate view on the point. Others are explicitly issued as resolutions of interagency disputes and are binding on the agencies under an executive order.
Abdo also insisted that CFA’s request was no broader than others adjudicated by the courts, including the Supreme Court, in similar disputes over the line between deliberative legal advice that is entitled to protection and official agency positions which could amount to a body of "secret law" if the public cannot access them. He noted that the courts have previously ruled that some legal opinions issued by the Internal Revenue Service, the National Labor Relations Board and the Energy Department must be disclosed.
Towards the end of the protracted hearing, Schwei rolled out the big rhetorical guns. He warned that requiring the disclosure of the legal opinions "would really threaten OLC’s role in the executive branch, as well as raise Article II constitutional concerns."
He did not elaborate, but in legal briefs the Justice Department argues that allowing the suit to proceed could "threaten the rule of law" by imperiling executive officials’ ability to receive confidential legal advice, inclduing the president’s ability to get advice covered by executive privilege.
Jackson signaled no timeline for ruling in the case, which was filed last June. The issue before her at the moment is the government motion to dismiss the suit. One possibility is that she could do that, while leaving open the possibility for CFA to narrow its case to certain categories of documents like the ones Abdo identified Tuesday.
However, one thorny issue is the group’s insistence that it is entitled to an index of all opinions that serve as binding policy. Abdo argued Tuesday that the plain text of the law requires OLC to make that information public. Publishing a complete index of simply the title and date of opinions would be a major departure from the agency’s current practice. At the moment, FOIA requests for lists of opinions issued in specific years are often met by page-after-page of blacked out titles, with only an occasional heading left for public consumption.