United States District Court, District of Columbia
CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Plaintiff,
UNITED STATES DEPARTMENT OF JUSTICE, Defendant.
N. McFADDEN JUDGE
suit, the Plaintiff Citizens for Responsibility and Ethics in
Washington ("CREW") seeks a court order requiring
the publication of "all existing and future .. .formal
written opinions" issued by the Office of Legal Counsel
("OLC"), Compl. 8-9, a component of the U.S.
Department of Justice that provides "the opinion of the
Attorney General on questions of law" arising within the
executive branch. 28 U.S.C. § 512. CREW contends that
these documents are subject to the Freedom of Information
Act's "reading room" provision, which requires
that specific categories of records be affirmatively made
"available for public inspection in an electronic
format." 5 U.S.C. § 552(a)(2). But this claim fails
as a matter of law, since at least some of the documents
sought are subject to FOIA Exemption 5, which protects both
the deliberative process privilege and the attorney-client
privilege. Elec. Frontier Found, v. U.S. Dep't of
Justice, 739 F.3d 1, 4 (D.C. Cir. 2014)
("EFF”). This well-settled law presents
an obvious and insurmountable barrier to ordering the
universal publication of OLC's formal written opinions.
Accordingly, I will dismiss CREW's complaint for failure
to state a claim upon which relief can be granted.
2013, CREW requested the same relief under the auspices of
the Administrative Procedure Act (APA), but the District
Court dismissed the claim for lack of jurisdiction, and the
D.C. Circuit affirmed. Citizens for Responsibility &
Ethics in Washington v. U.S. Dep't of Justice, 164
F.Supp.3d 145, 147 (D.D.C. 2016) ("CREWF); Citizens
for Responsibility & Ethics in Washington v. United
States Dep't of Justice, 846 F.3d 1235 (D.C. Cir.
2017) ("CREW IP'). Both decisions concluded
that "Plaintiff... filed its suit under the wrong
statute, " CREW I, 164 F.Supp.3d at 147,
because the APA provides jurisdiction only when "there
is no other adequate remedy in a court, " 5 U.S.C.
§ 704, and "precedent establishes that a plaintiff
in CREWs position may bring a FOIA claim to enforce the
reading-room provision." CREWII, 846F.3d at
filed the instant suit in 2017, this time under
FOIA. The complaint contends that the DOJ has a
"mandatory, non-discretionary duty" under 5 U.S.C.
§ 552(a)(2) "to make available to the plaintiff on
an ongoing basis formal written opinions issued by the
DOJ's Office of Legal Counsel... and indices of such
opinions." Compl. ¶ 1- CREW alleges that it has
"repeatedly and unsuccessfully sought access to OLC
opinions through individual FOIA requests for specific
categories of OLC opinions and broader requests, "
including a request on February 3, 2017 "for all OLC
formal written opinions and indices of those opinions."
Id. ¶¶ 7, 22. In addition, the complaint
provides an overview of OLC's function and history,
alleging that the Government has itself described OLC
opinions as "controlling advice, "
"authoritative, " and "binding by custom and
practice in the executive branch." Id.
¶¶ 13-21 (quoting, inter alia, Memorandum
from David J. Barron, Acting Assistant Attorney General, to
Attorneys of the Office, Best Practices for OLC Legal Advice
and Written Opinions, (July 16, 2010) available at http
-and-written- opinions (last accessed February 22, 2018)
("Best Practices Memo"). As Count I, the complaint
contends that "OLC's formal written opinions,
described in the Best Practices Memo, " are subject to
mandatory publication under 5 U.S.C, § 552(a)(2). Compl.
¶ 27. As Count II, the complaint claims that indexes of
these opinions must also be made available under 5 U.S.C.
§ 552(a)(2)(E). Id. at ¶¶ 33-34.
relief, CREW seeks a declaration that the DOJ has violated
FOIA, orders requiring the DOJ to "make available to
CREW for public inspection and copying on an ongoing basis
all existing and future OLC formal written opinions" and
indices thereof, and an award of attorneys' fees and
costs. Compl. 8-9. The Government filed a motion to dismiss,
contending that the complaint's request for all of
OLC's formal, written opinions failed to state a claim
under Fed.R.Civ.P. 12(b)(6), and that to the extent CREW
"seeks to advance a different claim" for a
subcategory of those opinions, that claim was "neither
ripe nor adequately plead." Mem. In Support of Mot.
Dismiss 8 (hereinafter "Mot. Dismiss").
complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations." BellAtl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007). However,
"a complaint must contain sufficient factual matter,
accepted as true, to 'state a claim to relief that is
plausible on its face."' Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.
at 570). "A claim crosses from conceivable to plausible
when it contains factual allegations that, if proved, would
'allow the court to draw the reasonable inference that
the defendant is liable for the misconduct
alleged.'" Banneker Ventures, LLC v.
Graham, 798 F.3d 1119, 1129 (D.C. Cir. 2015) (alteration
omitted) (quoting Iqbal, 556 U.S. at 678). A court
must "draw all reasonable inferences from those
allegations in the plaintiffs favor, " but will not
"assume the truth of legal conclusions."
invokes FOIA's "reading room" provision, which
provides as follows:
Each agency . . . shall make available for public inspection
in an electronic format-
(A) final opinions, including concurring and dissenting
opinions, as well as orders, made in the adjudication of
(B) those statements of policy and interpretations which have
been adopted by the agency and are not published in the
Federal Register . .. and
(E)... current indexes providing identifying information for
the public as to any matter issued, adopted, or promulgated
after July 4, 1967, and required by this paragraph
[subsection (a), ...