922 F.3d 480
D.C. Cir.2019Background
- The Office of Legal Counsel (OLC) issues formal written opinions advising executive agencies; some are published, others withheld based on deliberative-process, confidentiality, or national-security concerns.
- CREW sued under FOIA §552(a)(2) (the "reading-room" provision) seeking publication of all OLC formal written opinions and indices, not making discrete document requests under §552(a)(3).
- The district court dismissed CREW’s complaint for failure to state a claim; this appeal follows. The court relied on this court’s prior decision in Electronic Frontier Foundation v. DOJ (EFF).
- EFF held an OLC opinion was protected by the deliberative-process privilege and explained that OLC opinions, even if “controlling” within the Executive Branch, are not automatically the "working law" of recipient agencies unless adopted by them.
- The panel majority affirmed dismissal because CREW’s complaint pleaded only that OLC opinions are "controlling," "authoritative," and "binding," without alleging that agencies adopted those opinions as their own—an element required to show the opinions fall into §552(a)(2)’s categories.
- Judge Pillard dissented, arguing CREW plausibly alleged that at least some OLC opinions are "final opinions" or "interpretations adopted by the agency," and that Rule 8 does not require CREW to plead around possible FOIA exemptions or identify specific subsets at the pleading stage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CREW plausibly alleged OLC formal written opinions are "working law" subject to mandatory disclosure under FOIA §552(a)(2) | CREW: OLC opinions are "controlling," "authoritative," and therefore are final opinions or adopted interpretations that must be published in the reading room | DOJ: OLC opinions are advisory and many are not adopted by recipient agencies; EFF shows such opinions can be withheld | Held: Dismissed — CREW failed to allege agencies adopted OLC opinions; labels alone ("controlling," etc.) insufficient to plead §552(a)(2) claim |
| Whether CREW bore a heightened pleading burden to identify a subset of OLC opinions | CREW: Not required to identify subsets or negate exemptions at pleading stage; Rule 8 notice pleading suffices | DOJ: Complaint sought universal relief; if any OLC opinion is properly withheld, universal claim fails without alleging adoptive subset | Held: Court required factual allegations showing opinions fall within §552(a)(2); CREW did not meet that standard |
| Proper pleading standard for FOIA reading-room claims vs. reactive FOIA claims | CREW: Reading-room claims should proceed on general allegations that OLC fails to publish its "working law" | DOJ: Plaintiff must plead facts placing records within §552(a)(2) categories before agency burden to justify withholding | Held: Pleading must plausibly allege record nature that makes them §552(a)(2) documents; then agency bears burden to justify withholding |
| Whether EFF forecloses any universal reading-room claim for OLC opinions | CREW: EFF does not establish all OLC opinions are non-disclosable; CREW’s complaint should survive | DOJ: EFF demonstrates at least some OLC opinions are non-disclosable, defeating a universal claim | Held: EFF undermines a universal claim; because CREW pleaded universally without alleging adoption by agencies, dismissal affirmed |
Key Cases Cited
- Electronic Frontier Foundation v. U.S. Dep’t of Justice, 739 F.3d 1 (D.C. Cir. 2014) (OLC opinions may be deliberative and not “working law” unless adopted by agency)
- Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, 846 F.3d 1235 (D.C. Cir. 2017) (prior CREW appeal addressing procedural posture of FOIA challenge)
- U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136 (1989) (mandatory disclosure requirements under FOIA determine "improper withholding")
- NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975) (documents that have "force and effect of law" constitute an agency's working law)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (plausibility pleading standard)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (complaint must state a plausible claim for relief)
- Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, 827 F.3d 145 (D.C. Cir. 2016) (elements required to state a FOIA claim)