Campaign for Accountability v. DOJ, No. 16-1068, 2024 WL 1701640 (D.D.C. Apr. 19, 2024) (Cobb, J.)

Campaign for Accountability v. DOJ, No. 16-1068, 2024 WL 1701640 (D.D.C. Apr. 19, 2024) (Cobb, J.)

Re:  Plaintiff seeking judgment that OLC’s formal, written opinions resolving interagency disputes are subject to FOIA’s reading-room provision

Disposition:  Denying defendant’s motion for summary judgment; granting plaintiff’s motion for summary judgment

• Proactive Disclosures:  The court observes that “[plaintiff] argues that the OLC’s final written opinions resolving interagency disputes are subject to disclosure under both §§ 552(a)(2)(A) and (B).”  “The Court finds that the documents at issue are ‘final opinions . . . made in the adjudication of cases,’ . . . and thus subject to affirmative disclosure.”  “Having made this determination, the Court finds it unnecessary to opine whether the documents might also be subject to disclosure under § 552(a)(2)(B).”  The court relays that, “[t]o satisfy the requirements of § 552(a)(2)(A), a document must be (1) a final opinion and (2) made in the adjudication of a case.”  The court finds that, “[a]ccording to the Best Practices Memo, [“[t]he guiding principles for preparing and publishing such opinions,”] the OLC’s formal opinions constitute ‘controlling legal advice,’ which represents – short of intervention by the courts – the ‘final word on the controlling law.’”  “As this Court previously explained, the OLC’s authority to issue such controlling advice flows from ‘Article II’s vesting of the “executive power” in one President,’ . . . and from the agency’s position as the presidential appointee that serves as a ‘neutral arbiter to resolve the differing stances’ of two agencies . . . .”  “The OLC does not contest that client agencies treat its opinions as binding.”  “Nor does it dispute that the OLC gives its own opinions precedential effect.”  “The OLC has not suggested that its written opinions are mere ‘recommendations’ that have no effect absent approval by some higher authority.”  “Despite all that, the OLC argues that its formal written opinions resolving interagency disputes are more like ‘advice documents’ than final opinions.”  “That is because those opinions sometimes ‘leave agencies with a broad range of potential avenues for action and prospective policy choices,’ and therefore do not necessarily dispose of any agency action.”  “That argument misses the mark.”  “Section 552(a)(2)(A) . . . makes no mention of policy.”  “The fact that an OLC opinion does not definitively resolve questions of policy has no bearing on whether it is final as to the legal issue it resolves.” 
  
  “Having determined that the OLC’s formal opinions resolving interagency disputes are ‘final opinions,’ the Court next concludes that such opinions are ‘made in the adjudication of cases.’”  “According to the statute, ‘adjudication’ is an ‘agency process for the formulation of an order.’”  “An ‘order’ is ‘a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making.’”  “An advisory opinion is not a final disposition.”  “As detailed in the Best Practices Memo, the OLC diligently avoids issuing advisory opinions – issuing written opinions only for disputes that are ‘concrete and ongoing.’”  “Moreover, the process by which the OLC researches, drafts, and finalizes its opinions that resolve interagency disputes is standardized, thorough, and bears many of the hallmarks of adversarial adjudication.”  “Before formulating its order, the OLC solicits a ‘detailed’ brief from each of the client agencies laying out its side of the dispute.”  “Those briefs are shared with the opposing agency (or agencies) so that it (or they) may have an opportunity to respond when necessary.”  “The OLC functions like a neutral decisionmaker, ‘tak[ing] care to consider fully and address impartially’ all the arguments made by each side . . . applying not only its own precedents, but judicial caselaw and the various tools of statutory interpretation as well . . . .”  “The OLC’s formal opinions, once complete, are carefully edited and cite-checked, signed, and filed away for use as precedent in the future.”  “The OLC makes two arguments that the opinions at issue in this case are not ‘made in adjudications.’”  “The first of those arguments is that the OLC’s procedures (as described in the Best Practices memo) lack some of the characteristics of a formal adjudication under the Administrative Procedures Act (APA), as described by 5 U.S.C. § 554.”  “Specifically, the OLC asserts that it has ‘no formal procedures governing how [agency briefs] are submitted, let alone opportunity for an adversarial hearing, prohibitions on ex parte communications, or a requirement of a decision that rests solely on a hearing record.’”  “The OLC is correct that its procedures do not satisfy all the requirements of § 554.”  “But that provision concerns only the subset of ‘adjudication[s] required by statute to be determined on the record after opportunity for an agency hearing.’”  “In other words, even granting that the OLC’s decision-making process does not qualify as a formal adjudication under the APA, that has no bearing as to whether the opinions at issue are ‘made in the adjudication of cases.’”  “Next, the OLC asks the Court to revisit an argument it rejected at the motion to dismiss phase.”  “Specifically, the OLC argues that the phrase ‘made in the adjudication of cases’ cannot apply to the OLC’s opinions because the phrase was only intended to encompass ‘agencies’ adjudications of private rights.’”  “In support of that argument, the OLC points out that the preclusive effect of an agency’s failure to disclose documents that are subject to FOIA’s reading-room provision is that the undisclosed documents may not be ‘relied on, used, or cited as precedent by an agency against a party other than an agency.’”  “In the OLC’s view, the nature of that remedy, considered together with the legislative history of the reading-room provision, confirms that ‘Congress’s primary concern in § 552(a)(2) was with the adjudication of private rights.’”  “The Court is unpersuaded and reaffirms its earlier conclusion that the phrase ‘made in the adjudication of cases’ has no such meaning.”  “As the Court has explained, there is ‘nothing in the plain text or history of section 552(a)(2), or in the few cases that have interpreted that statutory provision, [to] establish[ ] that [ ] FOIA’s affirmative obligation to publish certain agency records extends only to agency records that pertain to the regulation of private entities.’”  “Moreover, the Court finds that the overarching purpose of the reading-room provision – to prevent the development of secret law – casts a wider net than the OLC imagines.”  “FOIA embodies the principle that the public has a strong interest in keeping ‘informed about what their government is up to.’”  “That purpose encompasses all manner of documents that are not themselves adjudications of private rights.”
  
  “Finally, the OLC argues that, if the Court concludes that even a subset of its opinions are subject to disclosure under § 552(a)(2), the precedent could be invoked to require the publication of all sorts of legal advice throughout the executive branch.”  “The result would be not only to discourage agencies from seeking advice from the OLC itself, but to hamstring agencies’ ability to access confidential legal advice in general, even from their own counsel.”  “In the OLC’s view, that result would fly in the face of the deliberative process privilege and constitute a serious threat to ‘rule-of-law values,’ outweighing any interest the public might have in the publication of the narrow category of opinions at issue in this case.”  “The OLC’s argument touches on a real concern.”  “The deliberative process privilege is meant to protect ‘confidential [ ] advisory opinions disclosure of which would be injurious to the consultative functions of government.’”  “The Court has carefully considered that argument, but it is unpersuaded for three reasons.”  “First, the Court does not find that there is any ambiguity as to whether § 552(a)(2)(A) applies to the opinions at issue here.”  “Having found that the plain text of § 552(a)(2)(A) encompasses the documents, the Court is ‘reluctant’ to construe § 552(b)(5) to apply to those documents.”  “Second, the OLC’s predictions as to how agencies will respond to the Court’s decision is entirely speculative.”  “There is nothing in the record that can be construed as evidence that agencies would stop turning to the OLC to resolve their disputes – particularly given that many of the OLC’s opinions resolving interagency disputes are already published voluntarily under the status quo.”  “Finally, the OLC’s argument that today’s decision will have serious ‘rule-of-law’ ramifications throughout the executive branch ignores the limited scope of this opinion.”  “All the Court decides today is that the subset of the OLC’s formal opinions that resolve interagency disputes are subject to the requirements of § 552(a)(2)(A), and (by implication) that they are not categorically protected by the deliberative process privilege.”  “Any individual document might still be shielded from disclosure under one or more of FOIA’s other exemptions.”  “Those exemptions protect, amongst other things, classified materials, § 5[5]2(b)(1), materials that pertain to the internal practices of an agency, § 5[5]2(b)(2), materials that would be subject to the attorney-client privilege, § 5[5]2(b)(5), and materials compiled for law enforcement purposes, § 5[5]2(b)(7).”  “The Court makes no ruling as to those exemptions, even with regard to the documents in this case.”  “In short, the Court finds little reason to conclude that today’s opinion will drastically change the process by which the OLC releases its opinions to the public, let alone eviscerate the ability of the executive branch to obtain candid advice.”  “Accordingly, the Court determines that the deliberative process privilege does not categorically protect the OLC’s formal written opinions resolving interagency disputes, and that those opinions are therefore subject to the affirmative disclosure requirements of FOIA’s reading-room provision.”
   
• Proactive Disclosures; Litigation Considerations, Relief:  The court holds that “FOIA grants the Court the authority to order that documents and indices be produced to the Plaintiff individually, not that they be published to the public at large.”  “Accordingly, the Court’s order requires OLC to produce its responsive, formal written opinions that resolve interagency disputes to [plaintiff], along with an index of those materials.”