Electronic Frontier Foundation v. United States Department of Justice
408 U.S. App. D.C. 1
| D.C. Cir. | 2014Background
- EFF appeals denial of its FOIA request for the FBI-initiated OLC Opinion, asserting it is not exempt or properly classified.
- The District Court held the entire OLC Opinion exempt under FOIA Exemption 5 (deliberative process) and Exemption 1 (classified content).
- OLC Opinion was prepared for the FBI in connection with the OIG’s investigation into FBI information-gathering techniques.
- The OIG report and Caproni’s congressional testimony referenced the OLC Opinion, but the FBI did not adopt the OLC Opinion as its own policy.
- The district court concluded no portion of the OLC Opinion was reasonably segregable, and that the OLC Opinion does not constitute the FBI’s “working law.”
- The court ultimately affirmed the district court’s judgment, applying the deliberative process privilege to the entire OLC Opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the OLC Opinion is protected by the deliberative process privilege | EFF argues OLC Opinion is not the FBI’s working law | DOJ contends the OLC Opinion reflects advisory deliberations and is predecisional | Yes, OLC Opinion is covered by the deliberative process privilege |
| Whether the FBI waived the deliberative privilege by public adoption or reliance | EFF asserts FBI adoption or public reliance waived privilege | DOJ argues no adoption by FBI; references were external (OIG/congress) | No waiver; FBI did not adopt the OLC Opinion as its own reasoning |
| Whether the OLC Opinion constitutes the FBI’s working law | EFF contends it provided binding guidance used by FBI | DOJ maintains OLC could advise but not set FBI policy; not working law | No; OLC Opinion not the FBI’s working law and not binding policy |
Key Cases Cited
- Sears, Roebuck & Co. v. United States, 421 U.S. 132 (U.S. 1975) (deliberative process privilege; working law vs. final policy)
- Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854 (D.C. Cir. 1980) (established policy interpretations; not all advisory materials are exempt)
- Tax Analysts v. IRS, 117 F.3d 607 (D.C. Cir. 1997) (advisory memoranda vs. working law distinctions)
- Afshar v. Dep’t of State, 702 F.2d 1125 (D.C. Cir. 1983) (predecisional memos become nonconfidential when expressly adopted)
- Renegotiation Bd. v. Grumman Aircraft Eng’g Corp., 421 U.S. 168 (U.S. 1975) (adoption exception to Exemption 5 requires explicit adoption of reasoning)
- La Raza v. Dep’t of Justice, 411 F.3d 350 (2d Cir. 2005) (public references to OLC memos can waive privilege if agency adopts or relies)