Office of Legal Counsel Is Illegally Withholding Opinions from Public Scrutiny, Suit Alleges

By: Courtney Buble, Government Executive, August 23, 2019

A free speech institution, a nonprofit watchdog and several scholars filed a lawsuit Wednesday against the Office of Legal Counsel for failing to fulfill Freedom of Information Act requests for decades-old documents they believe will shed light on current government surveillance activities, immigration policy and other significant issues. They argue the information should be released under a 2016 amendment to the law.

Click here to learn more about CfA’s lawsuit.

The Office of Legal Counsel, a Justice Department office that provides legal advice to the president and the executive branch, renders opinions that “definitively answer legal questions raised by agency officials or to resolve legal disputes between federal agencies,” the plaintiffs wrote in the complaint filed with the U.S. District Court for the Western District of Washington. Those opinions have defined the executive branch’s role in immigration enforcement, resolved disputes over nepotism, and determined whether the Justice Department can indict a sitting president, among other things.

The suit, brought by the Knight First Amendment Institute at Columbia University, the Campaign for Accountability and a group of scholars, is seeking documents related to FOIA requests for formal OLC opinions prior to Feb. 15, 1994. The Office of Legal Counsel maintains that its opinions are protected under the “deliberative processes privilege,” according to Daniela Nogueira, an attorney for the plaintiffs. This is an exemption that allows agencies to withhold documents considered part of the decision-making process. A bipartisan FOIA reform law signed by President Obama in 2016, however, ended that exemption after 25 years.

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