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Campaign for Accountability v. U.S. Department of Justice

United States District Court, District of Columbia

October 6, 2017

CAMPAIGN FOR ACCOUNTABILITY, Plaintiff,
v.
U.S. DEPARTMENT OF JUSTICE, Defendant.

          MEMORANDUM OPINION

          KETANJI BROWN JACKSON, UNITED STATES DISTRICT JUDGE.

         This lawsuit arises under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, but it is not the familiar sort of FOIA lawsuit that challenges an agency's failure to produce records in response to a specific request from the plaintiff. Rather, plaintiff Campaign for Accountability (“CfA”) seeks an order requiring the Department of Justice's Office of Legal Counsel (“OLC”) to comply with its obligation to make certain records available affirmatively, without the need for a prior request, pursuant to the FOIA's seldom-litigated ‘reading-room' provision, 5 U.S.C. § 552(a)(2). CfA alleges that the legal opinions that OLC provides on behalf of the Attorney General to various officials in the Executive Branch are subject to the reading-room provision either because OLC's legal advice documents are “final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases[, ]” id. § 552(a)(2)(A), or because they qualify as “statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register[, ]” id. § 552(a)(2)(B). (See Compl., ECF No. 1, ¶ 31.) OLC has already made many of its opinions (more than 1, 300 of them) available to the public on its website; however, in the instant lawsuit, CfA seeks an order requiring OLC to make available all of its opinions that have precedential effect within the Executive Branch, as well as an index of those opinions. (See Id. ¶ 35.)

         Before this Court at present is the government's motion to dismiss CfA's complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (See Mem. in Supp. of Def.'s Mot. to Dismiss (“Mot.”), ECF No. 9-1.) In its motion, the government argues that this Court lacks subject matter jurisdiction to entertain CfA's complaint because it seeks a type of relief that is beyond the scope of what the FOIA's remedial provision authorizes. (See Id. at 19-23 (discussing 5 U.S.C. § 552(a)(4)(B)).)[1]The government also takes various doctrinal tacks under both Rule 12(b)(1) and Rule 12(b)(6) to press the argument that CfA's claim is too broad and abstract for judicial resolution. Specifically, the government asserts that the FOIA's remedial provision does not authorize broad injunctions that are not tethered to specific documents (see Id. at 19-21); that FOIA claims that are not presented in a concrete factual setting are constitutionally unripe (see Id. at 23-27); and that CfA's allegations fail to state a claim upon which relief can be granted, because OLC opinions are not plausibly subject to the reading-room requirement, at least at the level of generality that CfA's complaint identifies them (see Id. at 29-31). In this regard, the government's motion-and indeed, CfA's complaint itself-raises novel questions regarding how a plaintiff who seeks to enforce the FOIA's reading-room provision must present its claims.

         On September 29, 2017, this Court issued an order that GRANTED the government's motion to dismiss, and DISMISSED CfA's complaint. (See ECF No. 18.) The instant Memorandum Opinion explains the reasons for that order. In short, having considered the parties' arguments, and in light of the D.C. Circuit's recent decision in Citizens for Responsibility and Ethics in Washington v. Department of Justice (CREW), 846 F.3d 1235 (D.C. Cir. 2017), this Court concludes that it does have subject matter jurisdiction to award the type of broad, prospective injunction that CfA seeks, even if the Court can only require that the requested records be produced to CfA rather than made available to the public. However, in this Court's view, CfA 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. Accordingly, and for the reasons explained fully below, the Court agrees with the government that CfA's complaint must be dismissed because it fails to state a claim upon which relief can be granted. The Court will permit CfA to file an amended complaint, if it chooses to do so, as provided in the Order that accompanies this Memorandum Opinion.

         I. BACKGROUND

         Because this case presents the question of whether OLC must make its legal opinions available for public inspection pursuant to the FOIA's reading-room provision, the statutory framework that informs the Court's analysis of that provision appears below. Following that recitation is a description of the role of OLC opinions within the Executive Branch, and an account of the various efforts-both by Plaintiff and by another similar organization, Citizens for Responsibility and Ethics in Washington (“CREW”)-to compel OLC to make its opinions available to the public.

         A. Statutory Framework

         Under the FOIA, this Court “has jurisdiction to enjoin [an] agency from withholding agency records and to order the production of records improperly withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B). A FOIA complaint that seeks judicial review of an agency's withholding of records can allege that the government's withholding violates any one of the statute's three disclosure requirements-sections 552(a)(1), (a)(2), or (a)(3). See Kennecott Utah Copper Corp. v. U.S. Dep't of the Interior, 88 F.3d 1191, 1202 (D.C. Cir. 1996). The vast majority of FOIA lawsuits arise under section 552(a)(3)(A), which mandates that “each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person.” 5 U.S.C. § 552(a)(3). The D.C. Circuit has referred to (a)(3) as the FOIA's “reactive” disclosure provision, because it requires an agency to produce records only “in response to specific requests.” CREW, 846 F.3d at 1240.

         A FOIA lawsuit may also accuse an agency of violating either one of the statute's “two distinct affirmative disclosure obligations[, ]” id., which, unlike section 552(a)(3), require agencies to act proactively with respect to the publication of certain types of records and information; i.e., the agency must disclose the records without waiting for a request. One of these two affirmative disclosure provisions, section 552(a)(1), pertains to information that agencies must “publish in the Federal Register for the guidance of the public[.]” 5 U.S.C. § 552(a)(1). The matters that an agency must publish in the Federal Register include “statements of the general course and method by which [an agency's] functions are channeled and determined, ” “rules of procedure, ” and “substantive rules of general applicability[, ]” among others. Id. § 552(a)(1)(B)-(D).

         This lawsuit arises under the FOIA's other affirmative disclosure requirement, which appears in section 552(a)(2)-the “so-called ‘reading room' provision.” Tax Analysts v. IRS, 117 F.3d 607, 609 (D.C. Cir. 1997).[2] Section 552(a)(2) identifies certain items than each agency must “make available for public inspection in an electronic format[.]” Id. § 552(a)(2). The categories of items that agencies must publicize pursuant to the reading-room provision include “final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases[, ]” and “those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register[.]” Id. § 552(a)(2)(A)-(B). Section 552(a)(2) also contains an indexing requirement, which dictates that “[e]ach agency shall . . . maintain and make available for public inspection in electronic format current indexes providing identifying information for the public as to any matter” covered by the other provisions of the reading-room requirement. Id. § 552(a)(2)(E).

         The FOIA's reading-room provision “represents an affirmative congressional purpose to require disclosure of documents which have the force and effect of law.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 153 (1975) (internal quotation marks and citation omitted). The types of documents that section 552(a)(2) requires agencies to publicize and index-“final opinions . . . made in the adjudication of cases[, ]” “statements of policy and interpretations which have been adopted by the agency[, ]” and “instructions to staff that affect a member of the public[, ]” 5 U.S.C. § 552(a)(2)(A)-(C)-collectively “indicate that the primary objective is the elimination of ‘secret law'”; that is, these requirements prevent an agency from subjecting members of the public to a rule that the agency has not publicly announced. U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 772 n.20 (1989) (quoting Frank H. Easterbrook, Privacy and the Optimal Extent of Disclosure Under the Freedom of Information Act, 9 J. Legal Studies 775, 777 (1980)); see also Id. (“Under the FOIA an agency must disclose its rules governing relationships with private parties and its demands on private conduct[.]”). In this same vein, any document to which section 552(a)(2) pertains “may be relied on, used, or cited as precedent by an agency against a party other than an agency only if” the agency has indexed and publicized it as the reading-room provision requires (or if the affected party otherwise knows about it). 5 U.S.C. § 552(a)(2)(E).[3]

         Notably, even if a record is subject to one of the FOIA's three disclosure requirements, the FOIA permits an agency to withhold the record if it falls within one of nine statutory exemptions. See 5 U.S.C. § 552(b)(1)-(9). Of particular relevance to this case, the FOIA's Exemption 5 protects from disclosure “inter-agency or intra- agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency[.]” Id. § 552(b)(5). To qualify for Exemption 5, a document “must fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds it.” Dep't of the Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8 (2001). “[T]hose privileges include the privilege for attorney work-product and what is sometimes called the ‘deliberative process' privilege.” Id.

         Significantly for present purposes, it is well established that Exemption 5 correlates with, and sheds light on, the scope of the FOIA's reading-room provision. Specifically, the Supreme Court has explained that courts generally should construe Exemption 5 and the reading-room provision such that they do not overlap. See Sears, 421 U.S. at 153 (“We should be reluctant . . . to construe Exemption 5 to apply to the documents described in 5 U.S.C. § 552(a)(2)[.]”). This means that if a record can be withheld under Exemption 5, then it is generally not subject to affirmative disclosure under the reading-room provision and vice versa, and this principle of mutual exclusion stems from the fact that Exemption 5 is limited to communications within an agency that “reflect the agency's group thinking in the process of working out its policy and determining what its law shall be[, ]” and does not apply to communications that “embody the agency's effective law and policy[.]” Id. (internal quotation marks and citation omitted). In Sears, the Court observed that these features of Exemption 5 reveal that it is a kind of mirror image of the reading-room requirement, and that with respect to the latter, Congress sought only “to require disclosure of documents which have the force and effect of law.” Id. (internal quotation marks and citation omitted).

         B. Legal Opinions Of The Office Of Legal Counsel

         “For decades, [OLC] has been the most significant centralized source of legal advice within the Executive Branch.” CREW, 846 F.3d at 1238 (internal quotation marks and citation omitted). This role is, “in some sense, nearly as old as the Republic itself. In the Judiciary Act of 1789, Congress authorized the Attorney General ‘to give his advice and opinion upon questions of law when required by the President of the United States, or when requested by the heads of any of the departments, touching any matters that may concern their departments.'” Id. (quoting Act of Sept. 24, 1789, ch. 20, § 35, 1 Stat. 73, 93 (codified as amended at 28 U.S.C. §§ 511-13)). As that statutory language suggests, the Attorney General's legal advice to the President and various executive agencies spans a wide range of issues and contexts. To give one example that CfA highlights, an Executive Order encourages (and in some cases, requires) executive agencies to submit disputes among themselves to the Attorney General for resolution. See Exec. Order No. 12, 146, §§ 1-401 to 1-402, 3 C.F.R. 409 (1979). (See also Compl. ¶ 16.)

         The Attorney General has delegated his authority to provide legal opinions to other Executive Branch officials to OLC. See 28 C.F.R. § 0.25(a) (charging OLC with “[p]reparing the formal opinions of the Attorney General[, ] rendering informal opinions and legal advice to the various agencies of the Government[, ] and assisting the Attorney General in the performance of his functions as legal adviser to the President and as a member of, and legal adviser to, the Cabinet”). It is allegedly OLC's “official view” that each of the legal opinions that it issues-whether formal or informal-is an “authoritative” statement of the law and is “binding” on the Executive Branch official to whom OLC issues the opinion “by custom and practice[.]” (Compl. ¶ 19 (quoting Karl Remon Thompson, Principal Deputy Assistant Attorney General, Remarks at American Bar Association Conference (2014)); see also Id. ¶ 21.)

         OLC does not make all of its legal opinions available to the public, but with respect to “formal written opinions[, ]” which is “one particularly important form of controlling legal advice” that OLC issues to Executive Branch officials, OLC “has a longstanding internal process in place for regular consideration and selection of significant opinions for official publication.” (Memorandum from David J. Barron, Acting Assistant Attorney General, to Attorneys of the Office, Best Practices for OLC Legal Advice and Written Opinions at 1, 5 (July 16, 2010) (“Best Practices Memo”), Ex. 3 to Def.'s Mot. to Dismiss, ECF No. 9-5).[4] Pursuant to that process, OLC's “internal publication review committee” makes publication decisions after seeking input from the authoring attorneys, from OLC's front office, and from “the requesting Executive Branch official or agency and any other agencies that have interests that might be affected by publication[.]” (Id. at 5.) Furthermore, when making publication decisions, OLC considers a variety of discretionary factors such as “the potential importance of the opinion to other agencies or officials in the Executive Branch” and “the likelihood that similar questions may arise in the future[.]” (Id.) OLC has published over 1, 300 opinions, dating from 1934 to the present.[5]

         C. Attempts To Get OLC To Publicize Its Legal Opinions

         On July 3, 2013, Anne Weisman, then Chief Counsel of Citizens for Responsibility and Ethics in Washington, wrote to OLC to “request[] 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.” (Letter from Anne L. Weisman to Assistant Attorney General Virginia A. Seitz (July 3, 2013) (“CREW Letter”), Ex. 1 to Def.'s Mot. to Dismiss, ECF 9-3, at 6; see also Compl. ¶ 26.) The letter quoted OLC's Best Practices Memo, and noted OLC's practice of publishing only some, but not all, of its opinions. (CREW Letter at 6-7.) The letter contended that OLC's opinions must be made available for public inspection under the FOIA's reading-room provision, because OLC's opinions “function as binding law on the executive branch.” (Id. at 7.) OLC responded that, in its view, FOIA exempts OLC opinions from disclosure because they are “ordinarily covered by [FOIA's] attorney-client and deliberative process privileges” and as such are covered by Exemption 5, and furthermore, OLC opinions are not subject to the reading-room provision's affirmative disclosure requirements because, “as confidential and predecisional legal advice, . . . [they] constitute neither ‘final opinions . . . made in the adjudication of cases' nor ‘statements of policy and interpretations which have been adopted by the agency.'” Letter from John E. Bies, Deputy Assistant Attorney General, to Anne L. Weisman (Aug. 20, 2013), quoted in CREW, 846 F.3d at 1239.

         CREW initially sued the Department of Justice under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-06, seeking to use that statute's judicial review provision to compel OLC to comply with its obligations under the FOIA. See CREW v. Dep't of Justice, 164 F.Supp.3d 145, 147 (D.D.C. 2016) (Mehta, J.), aff'd, CREW, 846 F.3d 1235 (D.C. Cir. 2017). CREW brought that initial lawsuit under the APA, rather than under the FOIA itself, because CREW took the position that the “FOIA does not provide an adequate remedy to address DOJ's alleged Section 552(a)(2) violation.” Id. Judge Mehta dismissed the case, reasoning that even if CREW could not obtain all of its requested relief under the FOIA, that statute provides relief of the “same genre” that CREW was seeking, and thus the FOIA supplies an “adequate remedy” for CREW's injuries, precluding a lawsuit under the APA. Id. at 155-56; see also 5 U.S.C. § 704 (providing that the APA allows for judicial review of “final agency action for which there is no other adequate remedy in a court”). The D.C. Circuit later affirmed that ruling in an opinion discussed at length below. See CREW, 846 F.3d 1235.

         On March 22, 2016, fifteen days after the district court decision in CREW, Ms. Weisman again wrote to OLC, this time as the Executive Director of Plaintiff Campaign for Accountability, and she again requested that OLC make its legal opinions available for public inspection. (See Compl. ¶ 24; Letter from Anne L. Weisman to Principal Deputy Assistant Attorney General Karl Remon Thompson (Mar. 22, 2016), Ex. 1 to Def.'s Mot. to Dismiss, ECF No. 9-3, at 1-3.) This second letter was “similar” to the previous letter (Compl. ¶ 26), insofar as it specifically requested that OLC make publicly available “all unpublished OLC opinions that provide controlling legal advice to executive branch agencies and a general index of all such opinions” (id. ¶ 24). OLC responded by letter on May 26, 2016, reiterating its “continuing position that none of the opinions it issues are covered by the requirements of 5 U.S.C. § 552(a)(2).” (Compl. ¶ 25; see also Letter from John E. Bies, Deputy Assistant Attorney General, to Anne L. Weisman (May 26, 2016), Ex. 2 to Def.'s Mot. to Dismiss, ECF No. 9-4, at 1 (asserting that OLC opinions “generally” are not subject to the reading-room provision and are “ordinarily” exempt from disclosure under the FOIA's attorney-client and deliberative process privileges).)

         D. Procedural History

         CfA filed its complaint in this lawsuit on June 8, 2016, challenging “OLC's ongoing refusal to comply with its mandatory obligations under 5 U.S.C. § 552(a)[.]” (Compl. ¶ 28.) The complaint contains two counts: in Count One, CfA alleges that OLC's years-long refusal to publish all of its binding opinions violates the disclosure provisions of the FOIA's reading-room requirement, 5 U.S.C. § 552(a)(2). (See Id. ¶¶ 29-35.) In Count Two, CfA alleges that OLC has also failed to comply with the separate indexing requirement of section 552(a)(2)(E), by “fail[ing] for years to make available for public inspection and copying indices of all final opinions made by OLC in the adjudication of cases and statements of policy and interpretation that have been adopted by the agency.” (Id. ¶ 38.) As relief, CfA seeks a declaration that both of these failures constitute violations of section 552(a)(2) (see id., Prayer for Relief, ¶¶ 1, 5), as well as an injunction requiring OLC to make available for public inspection and copying: (1) “all final opinions made in the adjudication of cases and statements of policy and interpretations that have been adopted by the agency”; (2) “all opinions issued by OLC that provide controlling advice to executive branch officials on questions of law that are centrally important to the functioning of the federal government”; (3) “all opinions issued by OLC that serve as precedent either within the OLC or within the executive branch, whether or not they are formal or informal opinions”; and (4) “indices of all final opinions made in the adjudication of cases and statements of policy and interpretations that have been adopted by the agency[.]” (Id. ¶¶ 2-4, 6.) Finally, the complaint requests “such other and further relief as the Court may deem just and proper.” (Id. ¶ 7.)

         The government has moved to dismiss the complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), and that motion is now fully briefed. (See Mot.; see also Pl.'s Opp'n to Def.'s Mot. to Dismiss (“Opp'n”), ECF No. 11; Reply Mem. in Supp. of Def.'s Mot. to Dismiss (“Reply”), ECF No. 12.) In its motion, the government argues, first, that CfA's requested relief is not available because the FOIA's judicial review provision, 5 U.S.C. § 552(a)(4)(B), only authorizes courts to “order[] disclosure of specific documents to individuals-not to order[] broad, prospective relief requiring ongoing publication for the benefit of the broader public.” (Mot. at 21.) Second, the government argues that Count One of the complaint must be dismissed on the grounds that it “is not ripe for adjudication because it is too abstract for judicial resolution.” (Id. at 23.) Third, the government argues that the complaint must be dismissed pursuant to Rule 12(b)(6) on the grounds that CfA “does not plausibly allege any unlawful failure to publish by OLC” because CfA's complaint “does not identify any particular advice documents that it believes fall within 5 U.S.C. § 552(a)(2)(A) or (B), but which OLC has failed to disclose.” (Id. at 29-30.) In support of this last argument, the government cites the D.C. Circuit's decision in Electronic Frontier Foundation v. Department of Justice (EFF), 739 F.3d 1 (D.C. Cir. 2014), which it argues stands for the proposition that OLC opinions, as a general matter, are not subject to the reading-room requirement and are exempt from disclosure under pursuant to Exemption 5. (See Mot. at 32-41.) Finally, the government argues that Count Two-the indexing claim- must be dismissed because it is derivative of Count One, and there is no obligation to publish an index of opinions if the opinions themselves need not be published under section 552(a)(2). (See Id. at 48-49.)

         CfA responds to each argument in turn, as detailed below. (See infra Part III.) With respect to the government's jurisdictional points, CfA focuses primarily on the fact that the FOIA gives courts broad remedial powers and that CfA is challenging OLC's policy of refusing to publish its opinions, not its withholding of any particular opinion. (See, e.g., Opp'n at 18-20, 22-26.) CfA also holds fast to its position that the reading-room requirement ...


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