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Citizens for Responsibility and Ethics in Washington v. United States Department of Justice

United States District Court, District of Columbia

February 28, 2018




         In this 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.

         I. Background

         In 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 1245.

         CREW filed the instant suit in 2017, this time under FOIA.[1] 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 s://www.justice. gov/olc/best-practices-olc-legal-advice -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.

         As 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").

         II. Legal Standards

         "[A] 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." Id.[2]

         III. Analysis

         CREW 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 cases;
(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), ...

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