278 F. Supp. 3d 303
D.D.C.2017Background
- Plaintiff Campaign for Accountability (CfA) sued DOJ/Office of Legal Counsel (OLC) under FOIA §552(a)(2) (the “reading-room” provision), seeking an order that OLC affirmatively publish all opinions that have precedential or controlling effect across the Executive Branch and an index of those opinions.
- OLC already posts many opinions (over 1,300) but maintains an internal publication process and contends many opinions are predecisional/confidential and exempt under FOIA Exemption 5.
- CfA alleges OLC’s opinions function as binding, authoritative statements of law within the Executive Branch and therefore fall within §552(a)(2)(A) (final opinions) or (B) (statements of policy/interpretations adopted by the agency).
- DOJ moved to dismiss under Rules 12(b)(1) and 12(b)(6), arguing (1) FOIA’s remedial provision does not authorize the broad public-publication injunction CfA seeks; (2) CfA’s claim is unripe/too abstract; and (3) the complaint fails to identify ascertainable records plausibly subject to the reading-room requirement (relying on D.C. Circuit precedent such as EFF).
- The court (Judge Ketanji Brown Jackson) held it has jurisdiction to award prospective injunctive relief and to order production of reading-room documents to the plaintiff (not to the public) per CREW, but dismissed CfA’s complaint for failure to state a claim because it did not identify an ascertainable set of OLC opinions plausibly within §552(a)(2).
- The court granted leave to amend: CfA may file an amended complaint identifying discrete categories of OLC opinions it contends are subject to the reading-room provision (e.g., certain inter-agency dispute opinions or opinions given to independent agencies), with attention to statutory language and whether OLC has actually withheld those opinions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court has jurisdiction to grant the prospective, affirmative relief CfA seeks under FOIA §552(a)(4)(B) | CfA: FOIA authorizes broad equitable relief to end OLC’s categorical refusal to publish controlling opinions | DOJ: FOIA’s remedy allows only disclosure to the plaintiff of specific documents, not broad, prospective publication to the public | Court: Jurisdiction exists to order prospective, affirmative disclosure to the plaintiff (not mandatory public posting), following CREW |
| Whether CfA’s claim is unripe/too abstract for judicial resolution | CfA: Claim challenges an actual, concrete policy—OLC’s longstanding refusal to publish—and is ripe | DOJ: Claim is abstract because CfA seeks a categorical rule about all OLC opinions without identifying particular documents | Court: Not a ripeness/standing problem; government’s concern is a pleading failure rather than jurisdictional ripeness |
| Whether CfA plausibly alleged OLC unlawfully withheld reading-room records (Rule 12(b)(6)) | CfA: OLC’s controlling and precedential opinions are final/ adopted policy and must be publicized under §552(a)(2)(A)/(B) | DOJ: Complaint fails to identify specific ascertainable records and D.C. Circuit precedent (EFF) rejects the premise that OLC’s controlling advice automatically constitutes an agency’s "working law" | Court: Dismissed for failure to state a claim—CfA did not identify an ascertainable category of OLC opinions plausibly within §552(a)(2) |
| Whether CfA’s indexing claim stands independent of its publication claim | CfA: Indexing is a separate FOIA duty under §552(a)(2)(E) | DOJ: Indexing claim is derivative—no index duty if opinions need not be published | Court: Indexing claim is derivative and fails for same reason as primary claim |
Key Cases Cited
- Citizens for Responsibility & Ethics in Wash. v. Dep’t of Justice, 846 F.3d 1235 (D.C. Cir. 2017) (FOIA permits district courts to issue prospective injunctions requiring agencies to disclose reading-room records to the plaintiff, though not necessarily to the public)
- Electronic Frontier Foundation v. Dep’t of Justice, 739 F.3d 1 (D.C. Cir. 2014) (OLC opinions do not automatically constitute an agency’s "working law"; deliberative-process privilege may apply)
- NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (U.S. 1975) (reading-room provision targets documents with force/effect of law; courts should avoid construing Exemption 5 to cover those documents)
- United States Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (U.S. 1989) (reading-room requirement prevents "secret law"; agencies must disclose rules that bind private parties)
- Kennecott Utah Copper Corp. v. U.S. Dep’t of the Interior, 88 F.3d 1191 (D.C. Cir. 1996) (FOIA remedial provision focuses on relief for the complainant; courts may order production to plaintiff rather than public posting)
- Tax Analysts v. Internal Revenue Serv., 117 F.3d 607 (D.C. Cir. 1997) (discusses scope of agency materials that must be disclosed under reading-room rules)
- Pub. Citizen v. Office of Mgmt. & Budget, 598 F.3d 865 (D.C. Cir. 2010) (memoranda reflecting an agency’s adopted policy are not protected by Exemption 5 and may be subject to disclosure)
- Dep’t of the Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1 (U.S. 2001) (Exemption 5 protects materials that would be privileged in litigation; includes deliberative-process and work-product privileges)