Campaign for Accountability v. DOJ, No. 16-1068, 2017 WL 4480828 (D.D.C. Oct. 6, 2017) (Jackson, J.)

Campaign for Accountability v. DOJ, No. 16-1068, 2017 WL 4480828 (D.D.C. Oct. 6, 2017) (Jackson, J.)

Re:  Request for order requiring OLC to make final opinions available under 5 U.S.C. § 552(a)(2)

Disposition:  Granting defendant's motion to dismiss

• Litigation Considerations & Proactive Disclosures:  "[The] Court concludes that it does have subject matter jurisdiction to award the type of broad, prospective injunction that [plaintiff] seeks, even if the Court can only require that the requested records be produced to [plaintiff] rather than made available to the public."  The court explains that "[it] cannot order OLC to 'make available for public inspection and copying' all documents that are subject to the reading-room provision, which is one of the remedies that [plaintiff] is seeking[.]"  Conversely, "[the] Court is authorized to order that OLC produce any documents that it has improperly withheld in violation of the reading-room provision to [plaintiff]."  "However, in [the] Court's view, [plaintiff] has not identified an ascertainable set of OLC opinions that OLC has withheld from the public and that is also plausibly subject to the FOIA's reading-room requirement."  "[The] Court reads [precedent] to foreclose [plaintiff's] attempt to point to the 'controlling' and 'precedential' nature of certain OLC opinions as the identifying features of the category of records that OLC is wrongfully withholding because they are subject to the reading-room requirement."  "To the contrary, [precedent] establishes that an OLC opinion does not become the 'working law' of the agency that requested it merely by virtue of the fact that it espouses a 'controlling' legal interpretation, . . . which, in [the] Court's view, makes it implausible that OLC's 'controlling' legal opinions are subject to the reading-room provision on that basis."
   
• Litigation Considerations:  The court holds that, "[h]ere, there is no question that [plaintiff] has suffered an actual, particularized injury sufficient to confer standing – and therefore one that is sufficient to generate a ripe controversy – because it reached out to OLC to request the records at issue and was rebuffed . . ., and the government does not argue otherwise."