Making Soup from a Single Oyster? CREW v. DOJ and the Obligation to Publish Office of Legal Counsel Opinions (Part II)
Summary: This three-post series discusses Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, a recent D.C. Circuit opinion affirming dismissal of a suit seeking to require publication of all Office of Legal Counsel (“OLC”) opinions. This post critiques the decision.
In Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, — F.3d. —, 2019 WL 1907230 at *2 (D.C. Cir. April 30, 2019)(“CREW II”), a split D.C. Circuit panel held that CREW had inadequately pleaded a claim that FOIA’s affirmative disclosure provisions required the Office of Legal Counsel to publish all of its opinions. To plead its claim, CREW had to establish the all OLC opinions are adopted by agencies as the agency’s own “working law.” Id. at *3.
Four Critiques of the D.C. Circuit’s Opinion
Judge Henderson’s majority opinion prompts four observations. First, the premise that OLC’s affirmative disclosure obligation turns on the recipient agency’s adoption of an OLC opinion is faulty. Second, pleading the disparity between the OLC’s publication policy, as enunciated in its 2010 Best Practices Memo, and section 552(a)(2)’s publication requirements should suffice to defeat a motion to dismiss. Third, under FOIA as properly interpreted, the relevant agency, not plaintiffs, bear the burden of categorizing opinions so as to allow meaningful judicial consideration of section 552(a)(2)’s applicability to the agency’s opinions. Fourth, the Court’s suggestion that CREW rely on FOIA’s reactive disclosure provisions, eschewing its affirmative disclosure provisions, is counter-productive and pointless. I will elaborate on each of these observations in turn.
1. Both the majority, and the dissent, ground their analysis on an erroneous premise, namely that “adoption” by the agency receiving an OLC opinion is a precondition of OLC’s affirmative disclosure obligation. OLC opinions may not be the “working law” of the recipient agencies until those agencies adopt them. But whether adopted by the receiving agency or not, such opinions are the “working law” of the Department of Justice. As the Justice Department’s “working law,” such opinions authoritatively determining the legality of certain courses of action and the legal constraints upon the U.S. Government.
Indeed, OLC decisions represent an authoritative exposition of the U.S. Government’s position because in general the Department of Justice, not the agencies receiving advice, possess exclusive authority to litigate on behalf of the United States. See, 28 U.S.C. § 516; 5 U.S.C. § 3106. Thus, even if the recipient agency disregards an OLC legal opinion, contrary to the condition some agencies must accept when seeking legal opinions, see Memorandum from David J. Barron, Acting Assistant Attorney General to Attorneys of the Office of Legal Counsel, Best Practices for OLC Legal Advice and Written Opinions 3 (July 16, 2010) (“Best Practices Memo”); the opinion serves as a constraint on their actions. If the agency is sued, the Department of Justice would presumably refuse to take a position at variance with the governing OLC opinion.
Thus, Electronic Frontier Foundation v. United States Department of Justice, 739 F.3d 1 (D.C. Cir. 2014) (Electronic Frontier), which the majority relied upon so heavily, has no relevance to OLC’s affirmative disclosure requirements under FOIA. Electronic Frontier involved the FOIA obligations of the recipient agency, not OLC. There the FOIA request was made to the recipient agency, namely the FBI. Electronic Frontier, 739 F.3d at 4. By contrast, CREW is asserting that the OLC, the agency providing the legal opinion, has an affirmative disclosure obligation. Perhaps OLC opinions are not necessarily the “working law” of agencies, but they are always the “working law” of the Department of Justice. Moreover, the particular type of opinion at issue in Electronic Frontier, one in which OLC laid out the available legally-permissible options for the agency to consider, id. at 10, was particularly inapt for treatment as the receiving agency’s “working law,” absent agency adoption.
2. OLC’s stated publication policy clearly diverges from the policy mandated by FOIA’s affirmative disclosure provisions (assuming those affirmative disclosure provisions cover OLC opinions at all, a question addressed in the final post in this series). Nothing in section 552(a)(2), allows agencies to refrain from making opinions or “interpretations” publicly accessible based on a lack of perceived importance. Nor would such a practice make sense given section 552(a)(2)’s rationale; whether significant or not, the legal requirements that govern citizens’ conduct should be accessible to those citizens.
Similarly, nothing in 552(a)(2) excuses non-publication based upon an agency’s concern that routine publication would discourage officials and agencies from seeking guidance. Federal Open Market Committee v. Merrill, 443 U.S. 340 (1979), suggests that records subject to mandatory disclosure may nevertheless be withheld based on FOIA’s exemptions. Id. at 360 n.23. However, section 552(a)(2) does not appear to contemplate that the concerns animating exemptions from the reactive disclosure requirements will play any role in FOIA’s mandatory disclosure obligations, with one exception. Section 552(a)(2) does allow agencies to safeguard the privacy interests of participants in agency adjudications, but that interest is to be protected by redacting the published opinion, not by withholding it altogether or even delaying its publication. Presumably, Congress expected agencies to exercise discretion in drafting opinions, statements of policy, and interpretations that would bind the public, so as to avoid including within them information the agency seeks to shield based on FOIA’s exemptions.
Indeed, FOIA was designed to remove the sort of discretion OLC has been exercising with regard to its opinions. Section 3(a) of the original Administrative Procedure Act required publication of opinions, statements of general policy, and interpretations, only to the extent that no “function of the United States requiring secrecy in the public interest” was involved. Pub. L. 79-404, 60 Stat. 237, 238, §3(a) (1946), codified as amended at 5 U.S.C. §552(a)(2)(A); see, THE ATTORNEY GENERAL’S MANUAL ON THE ADMINISTRATIVE PROCEDURE ACT 17 (1947)(Wm. W. Gaunt & Sons, Inc. 1973 reprint). And subsection (b), requiring publication of opinions, further granted agencies discretion to withhold publication when “good cause” required such opinions to be “confidential” and “not cited as precedent.” As House Report accompanying FOIA explained, the amended provision that would ultimately become amend 5 U.S.C. §552(a)(2) removed such discretion from agencies. H.R. Rep. 89-1497 at 28 (the bill deleted the existing “general, undefined authority for secrecy”).
As a matter of pleading, surely an allegation that an agency is following rules at odds with section 552(a)(2)’s text, by considering matters apparently made irrelevant by that text, would seem sufficient to plead an agency’ s failure to comply with its affirmative disclosure obligations. Indeed, CREW can unquestionably show that OLC’s published standard for making publication decisions departs from OLC’s obligations as even the CREW II majority conceives of them, namely that the obligation to publish opinions turns solely on whether they have been adopted, and thus made a part of agency “working law,” by recipient agencies. It is not clear why notice pleading requires anything more.
3. The CREW II majority erred in imposing upon CREW the burden of identifying specific categories of OLC opinions subject to mandatory disclosure. In analogizing CREW’s burden to FOIA requesters’ burden to plead the existence of a valid FOIA request, the majority choose the wrong analogy to the procedures for litigating reactive disclosure suits.
Agencies should bear the burden of categorizing their opinions, statements of policy, and interpretations so as to allow meaningful judicial consideration of which records fall within and without section 552(a)(2)’s mandatory publication requirements. The proper reactive disclosure requirement analogy is the judicially-created Vaughn index requirement. In certain circumstances, even if an agency believes a single exception covers all responsive documents, the agency may need to provide greater specificity nevertheless to facilitate consideration of whether the document is subject to disclosure or not. Prison Legal News v. Samuels, 787 F.3d 1142 (D.C. Cir. 2015), provides a prime example.
In Prison Legal News, the Bureau of Prisons sought to withhold 102 documents. It sorted most of the documents into two categories: (1) Federal Tort Claims Act (“FTCA”) claims filed by inmates, and (2) employment discrimination claims Bureau personnel had filed with the Equal Employment Opportunity Commission or Merit Systems Protection Board. With respect to each of the two groups of documents the Bureau provided a blanket justification for invoking FOIA’s privacy exemptions, Exemptions 6 and 7(c) (the “privacy” exemptions). The D.C. Circuit had previously held that a Vaughn index could justify withholdings on a category-of-document by category-of-document basis.
The D.C. Circuit found the Bureau’s use of such a categorical approach deficient. By creating categories based on types of filed documents, namely FTCA claims and employment discrimination claims, the Bureau had swept within each category a wide range of claims involving varying privacy interests. The D.C. Circuit explained that tort claimants’ privacy interests can differ dramatically — the privacy interest of inmates seeking compensation for slips and falls differs significantly from those seeking compensation for sexual assault. Similarly, the Court considered discrimination complaints by staff too variegated for the Bureau’s categorical approach to provide a tenable means of assessing the privacy interests at stake. Moreover, in justifying its redactions the Bureau had failed to distinguish victims and perpetrators, whose privacy interests differ. And, the Court noted, the countervailing consideration that must be weighed whenever exemptions 6 and 7(c) are invoked, “the public interest in disclosure,” varied. The significance of the public interest in disclosure turns on both “the individual’s role in a given claim—victim, perpetrator, witness, medical professional diagnosing an inmate, and so forth—and the nature of the claim itself.”
In short, the burden of providing a sufficient basis for the court to distinguish records that must be disclosed from those that need not rests with the Government in reactive disclosure cases. Since the Government has access to the documents and should have formulated the basis for withholding documents before refusing a FOIA request, it makes sense for the Government to shoulder this obligation. By contrast, the plaintiff would have to guess at both the nature of the agency’s records and the agency’s potential reason for refusing to disclose them. Nothing about an affirmative disclosure obligation undermines the rationales for imposing upon the government, rather than a plaintiff, the duty to categorize records and identify the basis for withholding them. Indeed, given the Government’s greater obligation to disclose in affirmative disclosure cases, the requirement that the Government provide a classification of documents and its justifications for refusing to publish them sufficient for judicial review is all the more compelling.
4. The CREW II majority criticized CREW for not relying on FOIA’s reactive provisions to ensure that OLC opinions that fell outside of FOIA’s exceptions should be divulged. Requiring CREW to seek opinions through reactive disclosure provisions substitutes a less desirable disclosure regime, in terms of breadth and speed of public accessibility, for a more desirable one — affirmative disclosure. As I have noted in a recent post, the contemporary trend is toward, not away from, affirmative disclosure. Bernard Bell, Retreating on Affirmative Disclosure: The Case of APHIS’s Publicly-Available Enforcement Databases, 36 YALE J. ON REG.: NOTICE & COMMENT (April 24, 2019).
Moreover, if CREW proceeds by filing a FOIA request, under Prison Legal News v. Samuels OLC would still have to categorize the documents in manner to make meaningful judicial review possible. In addition, if three or more requests are made for the same record, the record is subject to mandatory disclosure. 5 U.S.C. §(a)(2)(D)(ii)(II). Thus, if three or more requests for all OLC formal legal opinion issued in 2018 are made, all portions of the materials that fall outside FOIA’s exemptions would be subject to affirmative disclosure obligations.
 For the first post in this series, see Bernard Bell, Making Soup from a Single Oyster? CREW v. DOJ and the Obligation to Publish Office of Legal Counsel Opinions (Part I), 36 YALE J. ON REG.: NOTICE & COMMENT (May 13, 2019).
 Memorandum from David J. Barron, Acting Assistant Attorney General to Attorneys of the Office of Legal Counsel, Best Practices for OLC Legal Advice and Written Opinions 1 (July 16, 2010) (“Best Practices Memo”).
 See, Best Practices Memo, at 1 (“OLC’s central function is to provide, pursuant to the Attorney General’s delegation, controlling legal advice to Executive Branch officials in furtherance of the President’s constitutional duties to preserve, protect, and defend the Constitution, and to “take Care that the Laws be faithfully executed.”)
 Section 516 provides:
Except as otherwise authorized by law, the conduct of litigation in which the United States, an agency, or officer thereof is a party, or is interested, and securing evidence therefor, is reserved to officers of the Department of Justice, under the direction of the Attorney General.
Section 3106 provides:
Except as otherwise authorized by law, the head of an Executive department or military department may not employ an attorney or counsel for the conduct of litigation in which the United States, an agency, or employee thereof is a party, or is interested, or for the securing of evidence therefor, but shall refer the matter to the Department of Justice.
Several scholars have discussed the Department of Justice’s exclusive litigating authority. Elliott Karr, Independent Litigation Authority and Calls for the Views of the Solicitor General, 77 GEO. WASH. L. REV. 1080, 1084 (2009); Neal Devins & Michael Herz, The Uneasy Case for Department of Justice Control of Federal Litigation, 5 U. PA. J. CONST. L. 558 (2003); Michael Herz & Neal Devins, The Consequences of DOJ Control of Litigation Authority on Agency Programs, 52 ADM. L. REV. 4 (2000). And even agencies authorized to conduct their own litigation may lack authority to petition for certiorari. See, Federal Election Comm’n v. NRA Political Victory Fund, 513 U.S. 88 (1994)(Federal Elections Commissions lacks authority to seek certiorari).
 As the Best Practices Memo explains:
If we are asked to provide an opinion to an executive agency the head of which does not serve at the pleasure of the President (e.g., an agency head subject to a “for cause” removal restriction), our practice is to issue our opinion only if we have received in writing from that agency an agreement that it will conform its conduct to our conclusion.
Best Practices Memo at 3.
 See generally, U.S. v Public Util. Comm’n, 345 U.S. 295, 320 (1953) (Justice Jackson, J., concurring) (“The practice of the Federal Government relying on inaccessible law has heretofore been condemned”).
 The Department of Justice suggest that “FOIA’s nine exemptions apply as appropriate to any records that are required to be disclosed under the FOIA’s proactive disclosure provisions.” See Department of Justice Guide to Freedom of Information Act — Proactive Disclosure at 1.
 H.R. Rep. 89-1497 at 29 (explaining the manner in which FOIA solves the conflict between disclosure of agency law and the need to protect individual privacy).
 As suggested in Part III of this series, the concern that publication of certain types of material might uniquely implicate concerns animating the exemptions in particularly troubling ways might be relevant to section 552(a)(2)’s applicability. In particular, where such concerns are especially severe, a court might conclude that categories of material that arguably qualify as opinions, policy statements, or interpretations should nevertheless fall outside of section 552(a)(2)’s scope.
 Section 552(a)(2)(B) provided:
Every agency shall publish or, in accordance with published rule, make available to public inspection all final opinions or orders in the adjudication of cases (except those required for good cause to be held confidential and not cited as precedents) and all rules.
 Vaughn indexes are named after the case establishing such indexes as a requirement, Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir 1973). The Court created such a requirement after concluding that “existing customary procedures [used in FOIA cases] foster inefficiency and create a situation in which the Government need only carry its burden of proof against a party that is effectively helpless and a court system that is never designed to act in an adversary capacity.” Id. at 827.
 Traditionally, Vaughn indexes specified an agency’s grounds for withholding records on a document-by-document basis.
 Prison Legal News, 787 F.3d at 1150.
 See, id. at 1150-51.
 Id. at 1151.