United States District Court, District of Columbia
Citizens for Responsibility and Ethics in Washington, Plaintiff,
U.S. Department of Justice, et al., Defendants.
AMIT P. MEHTA, UNITED STATES DISTRICT JUDGE
Section 552(a)(2) of the Freedom of Information Act (“FOIA”) is known as FOIA’s “reading room” requirement. Unlike its better-known counterpart, Section 552(a)(3), which provides that an agency’s disclosure obligation is triggered only upon a request for specific records, Section 552(a)(2) obligates agencies to make certain types of materials available “for public inspection and copying, ” without the predicate requirement of a request. As pertinent here, subsections 552(a)(2)(A) and (a)(2)(B) require agencies to make available for public inspection and copying, respectively, (1) “final opinions . . . made in the adjudication of cases” and (2) “those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register.”
The plaintiff in this case, Citizens for Responsibility and Ethics in Washington, filed suit against Defendant U.S. Department of Justice (“DOJ”), alleging that DOJ has violated FOIA by failing to make legal opinions issued by its Office of Legal Counsel (“OLC”) publicly available under subsections 552(a)(2)(A) and (a)(2)(B). Quite naturally, one would think that an alleged violation of FOIA would be actionable under FOIA itself. Not so here, at least according to Plaintiff, which contends that FOIA does not provide an adequate remedy to address DOJ’s alleged Section 552(a)(2) violation. For that reason, Plaintiff has filed suit seeking relief solely under the Administrative Procedure Act (“APA”). Not surprisingly, DOJ argues that Plaintiff cannot challenge DOJ’s alleged lack of compliance with Section 552(a)(2) under the APA because FOIA provides an adequate remedy. Thus, the primary question the court must address here is whether a suit alleging that an agency has violated Section 552(a)(2) must be brought under FOIA, and FOIA alone, or whether such a claim can be advanced under the APA.
The court concludes that Plaintiff has filed its suit under the wrong statute. An action, as here, that seeks to compel a federal agency to comply with Section 552(a)(2) must be filed under FOIA. It cannot be brought under the APA. Accordingly, the court grants Defendants’ Motion to Dismiss.
A. Factual Background
Plaintiff Citizens for Responsibility and Ethics in Washington (“Plaintiff” or “CREW”) is a “nonprofit, non-partisan corporation . . . committed to protecting the rights of citizens to be informed about the activities of government officials; determining what the executive branch considers to be controlling legal authority, especially that which affects the public; ensuring the integrity of government officials and their actions; and protecting the integrity of our government and political system against corruption and deceit.” Am. Compl., ECF No. 18, ¶ 4. On July 3, 2013, Anne L. Weisman, CREW’s Chief Counsel, sent a letter to then-Assistant Attorney General Virginia Seitz, requesting that OLC “immediately comply with its obligation under 5 U.S.C. § 552(a)(2) to make available for public inspection and copying all OLC opinions that are binding on the executive branch.” Defs.’ Renewed Mot. to Dismiss, ECF No. 19 [hereinafter Mot. to Dismiss], Ex. 1, ECF No. 19-2 [hereinafter CREW Letter], at 1; see also Am. Compl. ¶ 9. “Specifically, ” Weisman wrote, “OLC is tasked with resolving inter-agency disputes, preparing the formal opinions of the [A]ttorney [G]eneral, and ‘[r]endering opinions to the Attorney General and to the heads of the various organizational units of the Department on questions of law arising in the administration of the Department.’” CREW Letter at 1 (quoting 28 C.F.R. § 0.25(a), (c)). Weisman asserted that these OLC opinions “function as binding law on the executive branch, ” constitute “final opinions . . . made in the adjudication of cases” or “statements of policy and interpretations which have been adopted by the agency, ” and therefore, must be made “available for public inspection and copying” under Section 552(a)(2) of FOIA. Id. at 2. She demanded that OLC “immediately begin the process of disclosing all of its opinions” or CREW “will seek relief from the courts.” Id.
On August 20, 2013, Deputy Assistant Attorney General John E. Beis responded to Plaintiff’s Letter on DOJ’s and OLC’s behalf. In his letter, Beis disputed Plaintiff’s contention that OLC does not comply with its FOIA obligations. First, he wrote, “OLC provides confidential legal advice within the Executive Branch[, and as] such, OLC’s advice is ordinarily covered by the attorney-client and deliberative process privileges, and is therefore exempt from mandatory disclosure under the FOIA.” Mot. to Dismiss, Ex. 2, ECF No. 19-3 [hereinafter OLC Letter]. Second, he countered that FOIA’s “reading room” requirement does not apply to OLC legal opinions because, “as confidential and pre-decisional legal advice, our opinions generally constitute neither ‘final opinions . . . made in the adjudication of cases’ nor ‘statements of policy and interpretations which have been adopted by the agency.’” Id. (quoting 5 U.S.C. §§ 552(a)(2)(A) & (B)). Beis then explained that in lieu of disclosing all of its opinions, OLC “make[s] an individualized, case-by-case determination with respect to whether each opinion of our Office is appropriate .” Id. Through this process, which is outlined in an internal OLC memorandum known as the “Best Practices Memo, ” Mot. to Dismiss, Ex. 3, ECF No. 19-4, OLC publishes some of its opinions. It publishes others, Beis continued, “when [it] receive[s] a FOIA request seeking OLC records and an opinion is responsive to that request, ” at which time OLC “consider[s] whether to waive applicable privileges and release the opinion as a matter of administrative discretion.” Id.
B. Procedural Background
One week after Beis responded to Plaintiff’s Letter, on August 27, 2013, CREW filed suit against DOJ, as well as then-Attorney General Eric Holder and then-Assistant Attorney General Virginia Seitz-who was later replaced in this lawsuit by Assistant Attorney General Karl Thompson-in their official capacities (collectively “Defendants”). See generally Compl., ECF No 1. In the introductory sentence of its original Complaint, Plaintiff wrote: “This is an action under the [APA] and [FOIA] challenging as arbitrary, capricious, and contrary to law the failure of [DOJ] to comply with” Section 552(a)(2) “by refusing to make available to the public opinions of [OLC].” Compl. ¶ 1 (emphasis added). Defendants then moved to dismiss the Complaint. See generally Defs.’ First Mot. to Dismiss, ECF No. 8.
On September 24, 2014, Judge Emmet G. Sullivan, who was then presiding over the case, held a hearing on Defendants’ motion to dismiss. In a Minute Order issued after the hearing, Judge Sullivan denied without prejudice Defendants’ motion and directed Plaintiff to file “an amended complaint clarifying the relief sought, the legal basis for such relief, and the avenue for judicial review of the claim.” See Minute Order, Sept. 24, 2014.
One week later, on October 1, 2014, Plaintiff filed an Amended Complaint. See generally Am. Compl. Plaintiff’s Amended Complaint made clear that it sought relief only under the APA, and not FOIA. Notably, Plaintiff dropped the phrase “an action under . . . FOIA” from the Amended Complaint’s introductory sentence. Am. Compl. ¶ 1 (“This is an action under the [APA] challenging as arbitrary, capricious, and contrary to law the failure of the defendants to comply with . . . 5 U.S.C. § 552(a)(2)[.]”). Plaintiff re-alleged in the Amended Complaint that DOJ’s refusal to make OLC legal opinions available under Section 552(a)(2) was contrary to the requirements of FOIA. Id. Plaintiff asserted that it had “suffered an informational harm by being deprived of information the law required DOJ to affirmatively make publicly available.” Id. ¶ 11.
Plaintiff’s Amended Complaint sought declaratory, remedial, and injunctive relief. Plaintiff requested (1) a declaration that “[D]efendants’ refusal to make available for public inspection and copying all final opinions made in the adjudication of cases and statements of policy and interpretations adopted by the agency [is] arbitrary, capricious, and contrary to law.” Id. at 12-13. Further, it asked for (2) an order requiring “[D]efendants to make all final opinions made in the adjudication of cases and statements of policy and interpretations available for public inspection and copying, including on an ongoing basis, and without a specific request for any specific opinion or category of opinion.” Id. at 13. And finally, Plaintiff demanded (3) an injunction prohibiting Defendants from: (a) “misapplying the definition of final opinions made in the adjudication of cases and statements of policy and interpretations adopted by the agency”; (b) “applying discretionary factors of their own choosing in determining whether to make OLC opinions that fall within 5 U.S.C. § 552(a)(2) publicly available”; and (c) “categorically excluding from their publication responsibilities under 5 U.S.C. § 552(a)(2) opinions issued by OLC ...