FBI Phone Surveillance Memo Will Stay Secret

(CN) - A Justice Department memo that provides the legal backbone for the FBI's collection of domestic phone records may remain secret, the D.C. Circuit ruled.

The Electronic Frontier Foundation, a digital rights nonprofit, had requested the January 2010 memo prepared by the Office of Legal Counsel (OLC) for the FBI under the Freedom of Information Act (FOIA).

The FBI claimed, however, that the memo was exempt from public disclosure under the "deliberative process" privilege, which exempts documents reflecting advisory opinions or recommendations that influence governmental decisions.

A federal judge agreed with the agency, and the D.C. Circuit affirmed the ruling Friday, permitting the memo to remain secret.

This case marks the first time the D.C. Circuit has considered whether Justice Department legal opinions are subject to the FOIA.

"The FBI did not 'adopt' the OLC opinion and thereby waive the deliberative process privilege," Judge Harry Edwards wrote for the three-judge panel. "The OIG [Office of Inspector General] mentioned the OLC opinion in its report, and a congressional committee inquired about the OLC ppinion, but the FBI never itself adopted the OLC opinion's reasoning as its own." (Italics in original.)

Ultimately the OLC opinion is part of the protected consultative process and cannot represent an authoritative statement of agency policy because the "OLC is not authorized to make decisions about the FBI's investigative policy," Edwards added.

Final decisions or authoritative statements of an agency's policy are not exempt from the FOIA.

Even if the OLC opinion had described "the legal parameters of what the FBI is permitted to do, it does not state or determine the FBI's policy," Edwards added (italics in original).

The court also found no sections of the opinion "reasonably segregable" from the opinion's other content, which might be separately released to the public.

It had been correct for the lower court to find that "the unclassified portions of the OLC opinion could not be released without harming the deliberative processes of the government by chilling the candid and frank communications necessary for effective governmental decision-making," Edwards wrote.

EFF attorney Mark Rumold told the Washington Post the nonprofit was "disappointed by today's decision, which allows the government to continue to secretly reinterpret federal surveillance laws in ways that diverge significantly from the public's understanding of these laws."

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