The Office of Legal Counsel (OLC) in the Department of Justice is the authoritative legal counsel for the executive branch, and its binding, formal opinions form a precedential body of law guiding executive actions in parallel to judicial doctrine.1 OLC serves a critical role by providing carefully reasoned legal guidance to executive actors while insulating debate over some of the President’s most important decisions from Congress, the judiciary, and the public.2 Because it sits within the executive branch, OLC favors a broader vision of presidential power than Congress, the judiciary, or legal academia.3 Publication of OLC’s formal opinions thus plays a crucial role in preserving the separation of powers and promoting transparency and accountability in executive decisionmaking.4 Recently, in Citizens for Responsibility & Ethics in Washington v. U.S. Department of Justice5 (CREW II), the D.C. Circuit dismissed Citizens for Responsibility and Ethics in Washington’s (CREW) claim that the “reading room” provision of the Freedom of Information Act6 (FOIA) required OLC to publish its opinions because CREW had not identified which opinions had been adopted by other agencies.7 The D.C. Circuit’s holding reinforces a trend against disclosure of OLC opinions under FOIA and increases the risk that OLC “secret law” will grow entrenched without congressional intervention.
FOIA’s recognition of the need for transparency in the types of executive decisions guided by OLC has been widely affirmed. Congress passed FOIA to “prevent the creation of ‘secret law,’”8 that is, unpublished law made within the executive branch to guide policy decisions that often have profound public impact.9 FOIA’s reading room provision obliges agencies to proactively publish certain categories of documents, including “working law,” or documents that carry the force of law and guide agency policy.10 Working law consists of the final opinions reached in the adjudication of cases as well as statements regarding the policies and interpretations that have been adopted by an agency.11 Several categories of documents are exempted, including records that are part of an agency’s deliberative process.12 FOIA’s more commonly employed reactive provision permits interested parties to request specific documents from an agency.13 On a bipartisan basis, the Supreme Court and past Presidents have endorsed FOIA’s goal of transparency: the Court has established a “strong presumption in favor of disclosure” of agency documents,14 and both President Obama and President George W. Bush directed federal agencies to increase transparency through FOIA.15 OLC opinions guide agency decisions by providing binding legal advice to executive actors who seek OLC’s assistance in addressing complex legal issues or settling legal questions disputed by executive agencies, thus implicating secret law concerns.16
In 2013, CREW17 unsuccessfully petitioned OLC for disclosure of all of its formal opinions under FOIA’s reading room provision.18 After its request was denied, CREW sued OLC in Citizens for Responsibility & Ethics in Washington v. U.S. Department of Justice19 (CREW I), alleging that the denial was arbitrary and capricious under the Administrative Procedure Act20 (APA). CREW sought to enjoin OLC to publish all existing and future formal opinions and their accompanying indices.21 Writing for the district court in CREW I, Judge Mehta dismissed the suit because it was improperly brought under the APA instead of FOIA.22 Remedy under the APA is available only as a last resort,23 and Judge Mehta believed that FOIA’s reading room provision afforded CREW an adequate remedy.24 Judge Tatel affirmed for the D.C. Circuit,25 noting that the court’s determination that the suit should be brought under FOIA was “entirely distinct” from finding that CREW was entitled to relief.26 Following the court’s suggestion in CREW I, CREW sued again to enjoin publication under FOIA’s reading room provision after OLC once again denied CREW’s request to disclose all of its unpublished written opinions and accompanying indices.27
Writing for the district court in CREW II, Judge McFadden dismissed the suit.28 Judge McFadden found CREW’s argument that the binding nature of OLC opinions rendered them the working law of the requesting agencies to be factually insufficient based on Electronic Frontier Foundation v. U.S. Department of Justice29 (EFF). In EFF, the D.C. Circuit held that an OLC opinion concerning the FBI’s practice of obtaining phone records without a warrant was merely legal advice and thus exempt from the reading room provision by the deliberative process privilege.30 Judge McFadden relied on EFF to establish that an OLC opinion could not be the working law of the requesting agency unless the agency actively adopted the opinion because OLC had no authority to set an agency’s policy.31 Judge McFadden further noted that the attorney-client privilege would also exempt some OLC opinions from the reading room provision.32 Consequently, he found that CREW’s plea for publication of all OLC opinions was overbroad and denied CREW’s request for discovery to determine the extent of OLC’s disclosure obligations.33 In dismissing the suit under Federal Rule of Civil Procedure 12(b)(6) for failing to make sufficient factual allegations to state a plausible claim,34 Judge McFadden gave CREW leave to file an amended complaint seeking disclosure of an eligible subset of written opinions.35 CREW declined to amend its complaint and directly appealed.36
Judge Henderson affirmed for the D.C. Circuit,37 similarly relying on EFF for the proposition that the binding nature of formal opinions was insufficient to establish that they were working law.38 EFF had emphasized that OLC’s power to draw the legal boundaries of an agency’s decision did not enable it to adopt a particular policy on the agency’s behalf.39 Because CREW had not alleged any additional facts beyond the binding nature of formal opinions, the court found that CREW had failed to state a plausible claim of relief under Rule 12(b)(6).40 The court further noted that requiring plaintiffs to identify a subset of opinions that was not exempt from the reading room provision was not overly burdensome; rather, it aligned with the reactive provision’s requirement that parties describe the documents requested.41
Judge Pillard42 dissented from the court’s dismissal because she believed that CREW had plausibly alleged that a portion of OLC opinions constituted the working law of requesting agencies and was subject to mandatory publication under the reading room provision.43 She found that CREW had plausibly established that some OLC opinions had been adopted by requesting agencies because they were binding.44 Judge Pillard also believed that CREW had plausibly alleged that some opinions were final opinions reached in adjudications because OLC decided interagency disputes through an adversarial system.45 Judge Pillard characterized the majority’s reliance on EFF as making “too much soup from one oyster” by dismissing the complaint after identifying a single opinion exempt from the reading room provision.46 Finally, she expressed concern that requiring plaintiffs to plead for publication of an eligible subset of opinions “effectively forces [plaintiffs] to anticipate and plead around any FOIA-exemption defense the government might raise.”47 Thus, she would have allowed the case to survive the motion to dismiss and proceed to discovery.48
CREW II deals a strong blow to efforts to ensure transparency and accountability in executive decisionmaking by reinforcing a trend away from disclosure under FOIA’s reading room provision. OLC proactively publishes “only a fraction” of its opinions,49 and parties seeking to access unpublished opinions must navigate the long and arduous path of filing individual requests under FOIA’s reactive provision. FOIA’s reading room provision could have provided a critical pathway toward greater publication of OLC opinions. However, by requiring plaintiffs to identify which types of OLC opinions are publishable without the benefit of discovery, the D.C. Circuit builds on EFF to reduce the likelihood that plaintiffs will be able to survive the pleading stage and achieve publication of OLC opinions. This reduces transparency in the immediate term and also incentivizes the use of formal opinions by providing the executive branch greater assurance that formal opinions will not be involuntarily disclosed. Due to the precedential nature of OLC opinions, CREW II increases the risk that OLC secret law will strengthen unless Congress imposes additional disclosure requirements on OLC.
FOIA’s application to OLC has been mostly limited to the reactive provision, which imposes significant barriers to disclosure. OLC generally views its opinions as privileged and exempt from the reading room provision’s mandatory publication requirement.50 Although it voluntarily publishes “a fraction of all of its written opinions,” many of these opinions are not published for years.51 This slow, limited publication often forces parties seeking access to OLC’s records to submit specific document requests under FOIA’s reactive provision, where they face a difficult path. Making the request is the first hurdle; parties are required to specifically describe the documents sought although the titles and subjects of OLC opinions may not be public.52 Even when granted, FOIA requests for OLC work product face potentially lengthy delays, and opinions may not be made publicly available beyond disclosure to the requesting party.53 Complex requests for OLC work products face an average delay of six months, and at least one request has been pending since 2012.54 Consequently, the legal analysis behind some of the executive branch’s most crucial decisions may stay secret for long periods, which, at a minimum, temporarily shields executive decisionmakers from having to fully justify their actions.55 This delay also hides precedential opinions that continue to influence present executive decisionmaking.56 In light of the challenges to obtaining OLC opinions under the reactive provision, the reading room provision presented as a strong candidate for ensuring transparency and accountability within the executive branch before EFF and CREW II.
Following CREW II, however, plaintiffs seeking to require OLC to proactively publish its opinions under the reading room provision face a significant hurdle. EFF had previously curtailed the reading room provision’s applicability to OLC opinions by holding that OLC did not have the authority to establish the working law of the agencies receiving its opinions.57 As Judge Pillard noted, CREW II further limited the reading room provision by requiring plaintiffs to plead for the publication of specific subsets of opinions that agencies have adopted as their working law without the benefit of discovery.58 This requires plaintiffs litigating under the reading room provision to perform the same gymnastic exercise as parties requesting records under the reactive provision by forcing plaintiffs to navigate a vast information disparity and specifically describe the documents they are seeking to have published.59 This pleading standard disadvantages plaintiffs; as empirical studies following Twombly and Iqbal have demonstrated, raising the pleading burden increases the likelihood that lawsuits will fail at the motion to dismiss stage for failure to plead sufficient facts.60 The negative effects of CREW II have already been partially realized in Campaign for Accountability v. U.S. Department of Justice,61 where the plaintiff was pressed to amend which subsets of opinions it alleged were subject to the reading room provision in order to escape the Department of Justice’s motion to dismiss.62 The heightened pleading burden imposed by CREW II thus adds to existing barriers to obtaining OLC opinions through FOIA.
In addition to impairing efforts to ensure transparency of past opinions, CREW II may incentivize greater future use of formal opinions.63 Formal opinions may be favored for their thoroughness, precedential weight, credibility-bestowing power,64 and ability to grant executive actors near immunity if their decisions are challenged in court.65 However, the risk that these opinions will be involuntarily disclosed may encourage executive actors to rely more on informal opinions from OLC66 or the legal apparatuses within agencies and the White House.67 CREW II reduces the risk of involuntary disclosure through FOIA, and thus, could lead to increased usage of formal opinions. Increased reliance on formal opinions would raise the likelihood of entrenchment of secret law within the executive branch because formal opinions have precedential weight and are given greater authority in court.68 Movement toward compelled disclosure through FOIA may not necessarily result in increased transparency of future legal decisions within the executive branch if it disincentivizes the use of formal opinions. But it would have the important effects of limiting the precedential role of OLC’s future guidance and increasing transparency of the existing body of opinions.
CREW II reinforces a trend against the disclosure of OLC opinions, preventing Congress and the public from accessing the binding legal advice underpinning many of the executive branch’s actions. Given the D.C. Circuit’s reluctance to facilitate the publication of OLC opinions through the reading room provision, the responsibility of promoting transparency and accountability within OLC may fall to Congress.69 The D.C. Circuit’s decisions in EFF and CREW II fortify the insular nature of OLC and contrast with congressional intent to establish broad disclosure of agency law through FOIA70 as well as recent legislative efforts to ensure greater transparency within OLC.71 Especially as OLC opinions continue to be a flashpoint between Congress and the President,72 it may be prudent for Congress to at least require OLC to disclose its formal opinions to Congress. In the absence of such reform, CREW II strengthens the specter of secret law, pressing against the constitutional limits of executive power and shielding some of the Executive’s most important legal decisions from Congress and the public.