Secrecy: FOIA

Oral Argument Preview: CREW v. DOJ

By David Ryan
Monday, November 28, 2016, 12:00 PM

On December 5, the D.C. Circuit will hear oral argument in Citizens for Responsibility and Ethics in Washington v. U.S. Department of Justice. The case presents an important question concerning the Freedom of Information Act: whether the Act’s “reading room” provision requires DOJ to prospectively disclose controlling legal opinions issued by the Office of Legal Counsel (OLC), without first receiving a request for specific documents.

The Office of Legal Counsel is the DOJ component responsible for providing authoritative legal advice to the White House and executive branch agencies. As explained in the Office’s 2010 Best Practices Memorandum, OLC frequently resolves novel legal questions that are important to the functioning of the government but unlikely to reach the federal courts in a justiciable controversy. This means that in many cases, OLC’s legal opinions are “effectively [the] final word on the controlling law” within the executive branch. Despite their importance, many OLC opinions are never released to the public, typically because they contain confidential legal advice or other sensitive government information.

Citizens for Responsibility and Ethics in Washington (CREW) argues that much of OLC’s legal advice is covered by FOIA’s reading room provision, 5 U.S.C. § 552(a)(2). Section 552(a)(2) enacts special requirements for several categories of government information, including “final opinions [from] the adjudication of cases” and “statements of policy and interpretations which have been adopted by the agency[.]” According to CREW, these two categories encompass every formal legal opinion issued by OLC, as well as any informal opinions that are binding or precedential. (A recent report from the Brennan Center provides further explanation on the formal/informal distinction.)

CREW’s contention has far-reaching implications. If correct, it would mean that OLC’s controlling opinions are presumptively subject to § 552(a)(2)’s prospective disclosure obligation, which would require that they be “ma[de] available for public inspection in an electronic format” from the moment they are created. This contrasts markedly with the better-known FOIA provision that governs the disclosure of most other government records, 5 U.S.C. § 552(a)(3), which only applies once an individual requests a specific set of documents. And although DOJ could rebut the presumption favoring disclosure by invoking one of FOIA’s exemptions (which include carve-outs for classified information and sensitive government deliberations), the reading room provision would also require DOJ to list, with “identifying information,” every OLC opinion in a public index. Even without the underlying documents, it is likely that such an index would be a treasure trove for open government advocates. It would also accelerate the trend, noted here previously, of targeted FOIA requests for OLC opinions, since the information in the index could be used to satisfy § 552(a)(3)’s requirement for individuals to “reasonably describe” any documents they request.

Since CREW is alleging a violation of FOIA, one might assume that it sued DOJ under FOIA’s judicial review provision, § 552(a)(4). However, CREW argued that this provision only permits a court to order the disclosure of a specific set of existing withheld documents, as opposed to every legal opinion OLC might issue in the future. For this reason, CREW instead sought judicial review solely under the Administrative Procedure Act and alleged OLC’s non-compliance with § 552(a)(2) as the predicate legal violation for its APA claim. That decision proved to be critical when the DOJ moved to dismiss CREW’s complaint in district court. In March, Judge Amit Mehta agreed with DOJ and held that a suit for documents subject to § 552(a)(2) cannot proceed under the APA and must instead be brought under the judicial review provisions of FOIA.

On appeal, DOJ renews its argument that the APA authorizes judicial review only when “there is no other adequate remedy in a court,” and that CREW has such an adequate remedy through FOIA itself. Specifically, CREW can file a FOIA request for an OLC opinion (or set of opinions) and obtain judicial review under § 552(a)(4) if DOJ denies the request. CREW counters that it is seeking not simply OLC’s existing legal opinions, but rather an injunction compelling OLC to make all of its opinions, “past, present, and future,” publicly available on “an ongoing and continuous basis[.]” Since the parties have agreed that such an injunction cannot be obtained under § 552(a)(4), CREW contends that FOIA does not provide an ‘adequate remedy’ for purposes of the APA.

DOJ appears to have the better argument concerning the ‘adequate remedy’ exception to APA review. It is not true, as CREW states, that the exception only applies “when there is another statute [besides the APA] that provides the specific relief that a plaintiff seeks.” Rather, the D.C. Circuit has held that an alternative statutory remedy can be adequate even though it does not provide “identical” relief to that sought by an APA plaintiff, so long as it provides relief “of the same genre.” Here, CREW can obtain any legal opinions it is entitled to through FOIA without obtaining an “ongoing and continuous” injunction against OLC. And while this could potentially require multiple FOIA requests and lawsuits, that burden is probably insufficient to permit CREW to circumvent FOIA’s judicial review provision by suing under the APA.

Indeed, the D.C. Circuit has previously considered statutory remedies that are more burdensome to plaintiffs than the ones at issue here, and found such remedies sufficiently adequate to preclude APA review. This has been the case even when the alternative statutory remedy did not provide de novo judicial review (which is available under § 552(a)(4)), and when the remedy could only be obtained in a lawsuit against a private party. Moreover, courts are especially likely to recognize an adequate remedy when a statute, like FOIA, has its own detailed judicial review procedures. This tendency aligns with the Supreme Court’s decision in Bowen v. Massachusetts, which noted that the primary purpose of the adequate remedy doctrine is to avoid “duplicat[ion] of existing procedures for review of agency action.”

Assuming this analysis is correct, the D.C. Circuit, like Judge Mehta, could decide the case solely on administrative law grounds without addressing the underlying question of whether § 552(a)(2) covers OLC legal opinions. However, even a narrower ruling of this sort could reach a number of unresolved issues that have significant implications for FOIA litigation.

For instance, in deciding whether FOIA judicial review is adequate, the D.C. Circuit might well determine that § 552(a)(4) affords broader injunctive relief than DOJ and CREW believe—in other words, that a FOIA litigant can obtain not only the existing documents described in her request but also an injunction requiring the disclosure of similar documents that the agency might create in the future. This is surely an outcome that the government hopes to avoid. To that end, an entire section of DOJ’s brief argues that the Court should not address the scope of injunctive relief available under FOIA because this case has not properly presented the issue for resolution. (An amicus brief from Public Citizen urges the D.C. Circuit to reach the issue and definitively establish that § 552(a)(4) authorizes injunctions requiring prospective disclosure. Judge Mehta’s opinion also noted that FOIA probably authorizes broader injunctive relief than DOJ contends, but he ultimately declined to rule on this point.)

Another possibility is an opinion that affirms the dismissal of CREW’s complaint but nonetheless indicates that at least some OLC opinions are covered by FOIA’s reading room provision. In that event, CREW (or another litigant) could bring a lawsuit alleging the same legal violation but stating a cause of action under FOIA instead of the APA. Alternatively, CREW could bring another APA lawsuit seeking an injunction ordering DOJ to publish an index of OLC’s legal opinions. As noted previously, the disclosure of such an index would provide ample fodder for subsequent FOIA suits against OLC. Additionally, a lawsuit seeking the index would have much stronger legal footing. DOJ’s brief concedes that APA review is available to enforce the indexing requirement under § 552(a)(2), and the lawsuit would not face the limitation from § 552(a)(3) that requires litigants to have “reasonably describ[ed]” any records requested.

In any event, the D.C. Circuit’s decision in CREW v. DOJ is likely to resolve important questions regarding the enforceability of FOIA’s reading room provision, and the availability of OLC opinions to the public. It may also have a much broader impact on FOIA litigation generally, even if the Court resolves the case on narrow administrative law grounds without deciding whether OLC opinions are subject to § 552(a)(2). In particular, a broader ruling in this case would most likely address the scope of injunctive relief that is available under § 552(a)(4), since that issue is closely related to whether judicial review under FOIA is sufficiently adequate to preclude CREW’s suit under the APA.

The case will be argued before Judges Tatel, Wilkins, and Sentelle, at 9:30 AM on Monday December 5th. Professor Alan B. Morrison of George Washington University Law School is lead counsel for CREW; Michael Raab and Daniel Tenny of Civil Appellate are counsel for DOJ.