Judge Paves Way for Challenges to DOJ Opinion Secrecy

WASHINGTON (CN) – Resolving a transparency catch-22, a federal judge dismissed a case about legal opinions from the Justice Department but affirmed the power of courts to intervene in more specific circumstances.

The Campaign for Accountability brought the underlying complaint last year, accusing the government of failing to comply with what are known as the reading-room provisions of the Freedom of Information Act.

Though the Justice Department’s Office of Legal Counsel has made more than 1,300 of its opinions available to the public on its website, the campaign argued that FOIA’s reading-room provisions require affirmative production, without the need for a prior request.

Since 1934, the Office of Legal Counsel has provided opinions on behalf of the U.S. attorney general to Executive Branch officials. The FOIA advocates here argued that such opinions are subject to the reading-room provisions alternatively because they are final or because they denote policy and interpretations that have been adopted by the agency and are not published in the Federal Register.

Represented by attorneys from the Knight First Amendment Institute, the campaign called for the release of all OLC opinions that have precedential effect within the Executive Branch, as well as an index of those opinions.

U.S. District Judge Ketanji Brown Jackson dismissed the case last month but remarked Friday on its novel dissection of what is otherwise a seldom-litigated requirement.

Though a future challenge could succeed, she concluded that the complaint here failed to identify “an ascertainable set of OLC opinions that OLC has withheld from the public and that is also plausibly subject to the FOIA’s reading-room requirement.”

Brown’s offer to consider an amended complaint grabbed the campaign’s interest. “We’re still considering our options including whether to file an amended complaint,” Daniel Stevens, the group’s executive director, said in an email.

The government had offered several bases for Jackson to dismiss the case, saying first that the broad relief sought by the campaign went beyond the scope authorized by FOIA’s remedial provision.

On a more doctrinal tack, the government also argued that the broad injunctions authorized by FOIA’s remedial provision must be tethered to specific documents. It also cast FOIA claims that are not presented in a concrete factual setting as constitutionally unripe, and it complained that the campaign identified the opinions too generally to qualify for the reading-room requirement.

Abbreviating the parties names, Brown found that ripeness was no basis to dismiss.

“Here, there is no question that CfA has suffered an actual, particularized injury sufficient to confer standing — and therefore one that is sufficient to generate a ripe controversy — because it reached out to OLC to request the records at issue and was rebuffed, and the government does not argue otherwise,” the 38-page opinion states.

Representatives for the Department of Justice declined to comment. The campaign was represented by Alex Abdo and Jameel Jaffer from the Knight First Amendment Institute.

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