DOJ: Advice To Agencies Not Automatically Subject To FOIA
Bryan Koenig, Law360, July 20, 2018
Oral arguments over a lawsuit attacking a claim by the U.S. Department of Justice’s Office of Legal Counsel that its legal advice is broadly exempt from the Freedom of Information Act boiled down Friday to a chicken-and-egg argument, with the DOJ asserting that agencies must adopt the advice before it becomes subject to disclosure.
The Campaign for Accountability contends, however, that formal written opinions from the OLC — a DOJ office that acts as legal adviser to the executive branch — are immediately binding on agencies and thus count as “working law” subject to disclosure under FOIA. It’ll be up to a D.C. federal judge to decide which comes first, the binding opinion or adoption by the agency, with the DOJ arguing of the latter Friday in an attempt to nix the CfA’s amended complaint after its first was tossed last year.
“There will always be an intermediate step. ... to give operative legal effect” to OLC opinions, DOJ attorney Daniel Schwei said. Those opinions, he argued, “have no effect until a policy-making agency actually does something.”
The OLC has already posted about 1,300 of its opinions online, but it’s not enough for the CfA, which filed suit in June 2016 only for U.S. District Judge Ketanji Brown Jackson to dismiss the initial complaint last year.
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