Knight Institute, on Behalf of CfA, files FOIA Lawsuit Seeking Disclosure of Office of Legal Counsel Opinions
Contact: Lorraine Kenny, Communications Director Knight First Amendment Institute, firstname.lastname@example.org, 646.745.8510
SEATTLE – On August 21, 2019, the Knight First Amendment Institute at Columbia University, on behalf of Campaign for Accountability (CfA) and five other plaintiffs, filed a Freedom of Information Act (FOIA) lawsuit to enforce a request for formal written opinions issued by the Office of Legal Counsel (OLC) prior to February 15, 1994. The request was filed on behalf of CfA and five scholars who believe their work on U.S. history, law, and politics would benefit from a more complete understanding of the legal opinions that have bound policymakers for decades. The lawsuit seeks to give effect to amendments that Congress made to the FOIA three years ago.
“The executive branch’s reliance on secret law leaves the public in the dark about the legal framework the government uses to make decisions about national security, war, immigration, civil rights, and more,” said Alex Abdo, the Knight Institute’s Litigation Director. “The OLC’s claim that these crucial documents are beyond the reach of the FOIA is wrong.”
As the executive branch’s legal arbiter, the OLC issues legal opinions governing the full-range of executive powers, policies, and responsibilities. Its formal written opinions constitute final and authoritative pronouncements of the law within the executive branch. Nevertheless, only a fraction of its opinions has been published; the rest remain “secret law,” inaccessible to historians and the public alike.
“Office of Legal Counsel opinions not only help shape current policy, they serve as precedent for future executive actions,” said Daniela Nogueira, a Knight Institute Legal Fellow. “Without access to these opinions, including those issued decades ago, the American public cannot fully evaluate the legality of current executive branch policies.”
In other litigation, the OLC has taken the position that its legal opinions are categorically exempt from the Freedom of Information Act because they are “deliberative” and also protected by the attorney-client privilege. In 2016, however, Congress amended the Freedom of Information Act to prohibit agencies from withholding as “deliberative” records more than 25 years old. The Knight Institute’s request asks for opinions that are more than 25 years old, and so the litigation will likely focus on whether the OLC’s opinions are protected by the attorney-client privilege.
“As a historian, I know all too well how this system of secrecy curtails understanding of some of our country’s most consequential executive actions,” said Mary L. Dudziak, the Asa Griggs Candler Professor of Law at Emory University School of Law and a plaintiff in the lawsuit. “One presidential action builds on another. The secrecy of this precedent is especially concerning when it comes to the power to send U.S. troops into harm’s way.”
On February 15, 2019, the Knight Institute submitted a request to the OLC for all of its formal written opinions issued prior to February 15, 1994. To date, the government has failed to comply with the request. Today’s lawsuit asks the court to enforce FOIA by requiring the OLC to process the request.
In addition to Professor Dudziak, the plaintiffs include Matthew J. Connelly, Professor in the Department of History at Columbia University; Megan Ming Francis, Associate Professor in the Department of Political Science at the University of Washington; Mathew L. Jones, James R. Barker Professor of Contemporary Civilization in the Department of History at Columbia University; Hiroshi Motomura, Susan Westerberg Prager Distinguished Professor of Law at the University of California, Los Angeles School of Law; and the Campaign for Accountability, a nonprofit, nonpartisan organization that uses litigation, research, and advocacy to hold public officials accountable.
Lawyers on the case include Abdo, Nogueira, and Jameel Jaffer of the Knight Institute, and Katherine George of Johnston George LLP.
CfA and the Knight Institute have previously taken action to encourage OLC transparency. In 2016, CfA, represented by the Knight Institute, filed a lawsuit arguing that the OLC’s formal written opinions must be proactively processed under FOIA. The case was re-argued on July 20, 2018, and a decision is still pending. Additionally, on August 16, 2018, CfA and the Knight Institute filed an amicus brief urging a federal appeals court to rule that the OLC must proactively process its formal written opinions for public release under FOIA.