298 F. Supp. 3d 151
D.C. Cir.2018Background
- CREW sued under FOIA seeking mandatory publication of "all existing and future ... formal written opinions" of the Department of Justice Office of Legal Counsel (OLC) and indices under the FOIA "reading room" provision, 5 U.S.C. § 552(a)(2).
- CREW previously sought similar relief under the APA; that suit was dismissed for lack of jurisdiction and the D.C. Circuit held FOIA was the proper vehicle for reading-room claims.
- The complaint alleges OLC opinions are "controlling," "authoritative," and thus subject to the reading-room disclosure requirements; CREW seeks declaratory relief and an ongoing publication order.
- The Government moved to dismiss under Rule 12(b)(6), arguing the complaint’s all‑inclusive claim fails because some OLC opinions are exempt from disclosure (notably under FOIA Exemption 5).
- The court found precedent (especially Elec. Frontier Found.) establishes that OLC opinions can be withheld under Exemption 5 via the deliberative-process and attorney-client privileges, so a universal disclosure order is foreclosed.
- The court dismissed CREW’s complaint for failure to state a claim, denied CREW’s request for limited discovery, and granted leave to amend to allege a narrower, ascertainable subset of opinions if desired.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether all OLC formal written opinions must be published under FOIA §552(a)(2) reading-room | All existing and future OLC formal written opinions and indices are mandatorily available for public inspection online. | Many OLC opinions are exempt from disclosure under FOIA Exemption 5 (deliberative-process and attorney-client privileges), so universal publication is unlawful. | Held for Defendant: universal claim fails because Exemption 5 permits withholding of at least some OLC opinions. |
| Applicability of deliberative-process privilege to OLC opinions | OLC opinions are "controlling" and thus constitute agency policy or final opinions not subject to the privilege. | Even if influential, OLC does not itself set agency policy; its advice is deliberative legal counsel and may be privileged. | Held for Defendant: EFF forecloses treating OLC opinions as agency "working law" when OLC cannot bind the recipient agency, so deliberative-process privilege can apply. |
| Applicability of attorney-client privilege to OLC communications | OLC opinions should be public under reading-room requirements despite internal legal advice status. | Communications between OLC and other executive-branch components are confidential attorney-client communications protected by Exemption 5. | Held for Defendant: attorney-client privilege covers confidential legal advice within government; many OLC opinions plausibly fall within that protection. |
| Whether limited discovery should proceed to identify disclosable opinions | CREW sought limited discovery to develop a record showing which opinions must be published. | Defendant argued discovery is premature where complaint fails to state a plausible claim for all opinions. | Held for Defendant: discovery denied because complaint must first state a plausible, non‑sweeping claim; pleadings, not discovery, control Rule 12(b)(6). |
Key Cases Cited
- Elec. Frontier Found. v. U.S. Dep't of Justice, 739 F.3d 1 (D.C. Cir. 2014) (OLC opinion withheld under Exemption 5; deliberative-process and attorney-client privileges apply to OLC advice)
- Citizens for Responsibility & Ethics in Washington v. U.S. Dep't of Justice, 846 F.3d 1235 (D.C. Cir. 2017) (panel decision discussing OLC's role and proper FOIA/AP A posture)
- NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (U.S. 1975) (describes deliberative-process privilege and limits of FOIA applicability to exempt materials)
- United States v. Jicarilla Apache Nation, 564 U.S. 162 (U.S. 2011) (attorney-client privilege applies to confidential communications between government officials and government attorneys)
- New York Times Co. v. U.S. Dep't of Justice, 806 F.3d 682 (2d Cir. 2015) (recognizes attorney-client protections for government legal advice)
- Campaign for Accountability v. U.S. Dep't of Justice, 278 F. Supp. 3d 303 (D.D.C. 2017) (District Court dismissed a broadly similar reading-room claim for failure to identify an ascertainable set of OLC opinions)