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Campaign for Accountability v. DOJ, No. 16-1068, 2020 WL 5505128 (D.D.C. Sept. 11, 2020) (Jackson, J.)


Campaign for Accountability v. DOJ, No. 16-1068, 2020 WL 5505128 (D.D.C. Sept. 11, 2020) (Jackson, J.)

Re:  Plaintiff's allegation that Office of Legal Counsel ("OLC") must make certain specified categories of OLC legal opinions automatically available to the public pursuant to FOIA's reading room provision

Disposition:  Granting in part and denying in part defendant's motion to dismiss plaintiff's amended complaint

  • Proactive Disclosures:  "[T]he Court adheres to its prior conclusion that not all – but also not none – of OLC's written opinions must be affirmatively disclosed pursuant to the FOIA's reading room provision, and it further finds that only one of the categories of OLC opinions that [plaintiff] has now identified is plausibly included in the classes of records that an agency must affirmatively disclose under section 552(a)(2)."  "In particular, the Court finds that [plaintiff] has plausibly alleged that OLC opinions relating to inter-agency disputes are 'final opinions . . . made in the adjudication of cases[,]' . . . and such opinions may also plausibly be characterized as 'statements of policy and interpretations' that have been adopted ex ante by at least one of the disputing agencies . . . ."  The court rejects "OLC's insistence that the statute's reference to 'cases' can only mean 'adversarial disputes involving private parties' . . . [and finds that that] is contrary to both ordinary practice and the common understanding of that term."  The court also finds that "[plaintiff's] amended complaint plausibly alleges that OLC essentially serves as an authoritative arbiter of legal disputes that are submitted to it in this particular context . . . ."  "The Court considers it implausible that any of the other types of OLC opinions to which [plaintiff] points[, "(a) opinions interpreting non-discretionary legal obligations; (b) opinions determining that particular statutes are unconstitutional; and (c) opinions adjudicating or determining private rights,"] fit into the FOIA's affirmative-disclosure classifications, and thus concludes that [plaintiff] has failed to state a claim with respect to those categories of opinions."  The court explains that "nothing in [plaintiff's] amended complaint gives rise to a reasonable inference that [the] first category of OLC opinions necessarily announces the client agency's working law from the moment the opinion is issued."  Regarding the second category, the court finds that "[plaintiff] neither identifies circumstances that plausibly suggest that such opinions, however policy-infused, are 'made in the adjudication of cases[,]'  . . . nor does [plaintiff] allege any facts that support a reasonable inference that such OLC opinions are automatically 'adopted' by the agency that solicited them."  Similarly, regarding the third category, the court finds that "the amended complaint does not allege that OLC has the authority to 'adjudicat[e]” the rights of the private individuals whom OLC's client agencies regulate.'"  "And there are no facts that support any inference that OLC controls its client agencies' own policy-related determinations, such that OLC opinions concerning the rights of individuals necessarily qualify as pronouncements of the client agency's own policies and interpretations with respect to that agency's adjudication of private rights."

    Addressing one of OLC's arguments, the court also finds that "contrary to OLC's representations, it is clear that what matters for FOIA purposes is whether the agency record at issue reflects agency determinations, interpretations, or policies that have the force of law, and not whether it involves the regulation or adjudication of private rights."

    "Notably, at this juncture, the Court's conclusion is based simply and solely on the amended complaint's allegations, and it might eventually determine, in the context of summary judgment, that OLC opinions resolving inter-agency disputes are not 'statements of policy and interpretations' adopted by those agencies ex ante, or that '"adjudications" between two parts of the executive branch are not the kind of "adjudication of cases" to which that section refers.'"  "But, for now, the Court finds that [plaintiff's] amended complaint contains a plausible allegation that OLC is required to make its opinions that resolve inter-agency disputes available for 'public inspection' under section 552(a)(2) of the FOIA, for the reasons explained above, and that the other categories of OLC opinions identified in the amended complaint do not plausibly violate the FOIA's reading-room provision."
Court Decision Topic(s)
District Court opinions
Proactive Disclosures
Updated October 20, 2020