Elec. Frontier Found. v. DOJ, No. 12-5363, 2014 WL 25916 (D.C. Cir. Jan. 3, 2014) (Edwards, S. C. J.)

Date: 
Friday, January 3, 2014
Re: Request for legal opinion prepared by Office of Legal Counsel for the FBI Disposition: Affirming the district court's grant of summary judgment to defendant
  • Exemption 5:  The court holds that the OLC opinion is "precisely the sort of 'advisory opinion ... comprising part of a process by which governmental decisions and policies are formulated' that is covered by the deliberative process privilege."  The D.C. Circuit finds that the OLC opinion "amounts to advice offered by OLC for consideration by officials of the FBI."  As a result, "[t]he authorities that control the disposition of this case are the decisions holding that the deliberative process privilege does cover legal memoranda that concern the advisability of a particular policy, but do not authoritatively state or determine the agency’s policy."  The court disagrees with plaintiff's argument and finds that "the OLC Opinion is not the 'working law' of the FBI."  The D.C. Circuit explains that "OLC is not authorized to make decisions about the FBI's investigative policy, so the OLC Opinion cannot be an authoritative statement of the agency's policy." 
  • Waiver/Public Adoption:   The D.C. Circuit holds that "[i]n this case, [plaintiff] cannot point to any evidence supporting its claim that the FBI expressly adopted the OLC Opinion as its reasoning."  Any "public references originated from the OIG and Congress," while "the FBI never itself publicly invoked or relied upon the contents of the OLC Opinion."
  • Procedural Requirements, "Reasonably Segregable" Obligation:  The court holds that "[b]ased on the declarations provided by the Government, the District Court correctly concluded that 'the unclassified portions of the OLC Opinion could not be released without harming the deliberative processes of the government by chilling the candid and frank communications necessary for effective governmental decision-making.'"
  • Exemption 1:  The court holds that "[b]ecause we find that the entire OLC Opinion is exempt from disclosure under the deliberative process privilege, there is no need for this court to determine whether certain portions of the OLC Opinion were properly withheld as classified under Exemption 1."
Topic: 
Court of Appeals
Exemption 1
Exemption 5
Procedural
Segregability
Waiver
Updated August 6, 2014