Office Of Legal Counsel Sued For Refusing To Turn Over Legal Memos Congress Said Aren't Exempt From FOIA Law

from the OLC-runs-a-tight-memory-hole dept

Another lawsuit has arisen from the Office of Legal Counsel's ongoing refusal to allow the general public to see its legal memos. The OLC claims these are categorically exempt from FOIA law because they constitute "deliberative" documents and/or are protected by attorney-client privilege.

But they're not "deliberative." In some cases -- if not many cases -- the OLC's guidance tells government agencies what they can and can't do legally, providing justification for warrantless searches, extrajudicial drone strikes, and lots of domestic surveillance.

In essence, the OLC is creating secret laws. Stupid amateurs (meaning the citizens who pay for the office that refuses to speak with them on an FOIA basis) apparently have no business knowing what the government has decided its okay for it to do.

Once in a long while, a FOIA lawsuit forces a legal memo out of the office's hands. But for the most part, an unknown number of legal opinions remain locked up out of the reach of the citizens the government is supposed to be accountable to.

The Knight First Amendment Institute is hoping a lawsuit will finally trigger a document dump from the opacity-prone OLC. FOIA law has changed in recent years, but the OLC has apparently chosen to ignore this.

In 2016... Congress amended the Freedom of Information Act to prohibit agencies from withholding as “deliberative” records more than 25 years old.

[...]

On February 15, 2019, the Knight Institute submitted a request to the OLC for all of its formal written opinions issued prior to February 15, 1994. To date, the government has failed to comply with the request.  

Since Congress has said older opinions can't be considered "deliberative" any longer, it's assumed the OLC will now claim these documents are protected by attorney-client privilege. The problem for litigants is the OLC's unending relationship with the government agencies it advises. These attorneys and clients are eternally inseparable.

The OLC can't even be bothered with half-assed compliance. This goes hand-in-hand with its barely-there transparency efforts over the past few decades.

As the lawsuit [PDF] points out, the OLC has been (very selectively) releasing decades-old legal opinions. But even with 40+ years lead time, the OLC still can't bring itself to release more than a small percentage of its secret law stuff.

In 1977, the OLC began to publish a volume of selected opinions given “their value as precedents and as a body of executive law on important matters.” According to the foreword to the first volume, however, approximately 75 percent of the 1977 opinions were excluded from publication.

After 1977, the OLC stopped revealing how many opinions were excluded from its volumes. Some OLC volumes note that a “significant” number were excluded. These statements are consistent with the views of at least one former OLC official, who has stated that the “published opinions are only the tip of the iceberg.” For example, the same OLC official noted that the office “gave 625 opinions to outside agencies in 1991.” But the 1991 volume of OLC opinions published only 13 opinions, or about 2%.

More recently, the Sunlight Foundation obtained the OLC’s internal list of OLC opinions issued between 1998 and 2012. Comparing the list with the OLC opinions that the office had made public either through its volumes or through FOIA productions, the Sunlight Foundation found that the OLC kept almost 40 percent of the office’s opinions secret over that period.

Hopefully, this litigation will force the agency to take a bright line approach to its legal opinions. They're given the full weight of the law by the agencies that comply with them, and yet the OLC continues to claim these are just suggestions and attorney-client conversations. But they're far more than that. They're laws the public can't read, can't comply with, and can't seek to have changed if they disagree with them.

Filed Under: congress, foia, office of legal counsel, olc
Companies: knight institute


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  1. identicon
    Pixelation, 3 Sep 2019 @ 9:36pm

    Translation

    "These are protected by, we don't want you to see what the fuck we are up to"

    reply to this | link to this | view in thread ]

  2. icon
    Tanner Andrews (profile), 4 Sep 2019 @ 4:20am

    Rather Old Yardstick to Measure Reliability

    19 And this is the condemnation, that light is come into the world, and men loved darkness rather than light, because their deeds were evil.

    20 For every one that doeth evil hateth the light, neither cometh to the light, lest his deeds should be reproved.

    21 But he that doeth truth cometh to the light, that his deeds may be made manifest, that they are wrought in God.

    Still measures true.

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, 4 Sep 2019 @ 4:48am

    After April 6 2040 Nothing will be hidden anymore

    They can keep doing this all they want until we develope the tech to be able to view anything that has ever happened in our recent past. Ever misdeed and dirty trick will be exposed and most likely every government on earth will be replaced within days.

    reply to this | link to this | view in thread ]

  4. identicon
    Haggie, 4 Sep 2019 @ 8:42am

    The best catch...

    ...Catch-22!

    What law did I break?

    We can't tell you that.

    How would I know that I broke the law?

    You should know what the laws are.

    Is it published somewhere?

    No.

    reply to this | link to this | view in thread ]

  5. icon
    Dan (profile), 4 Sep 2019 @ 10:10am

    In essence, the OLC is creating secret laws.

    Scott Greenfield explained five days ago why this claim is bullshit.

    reply to this | link to this | view in thread ]

  6. icon
    Thad (profile), 4 Sep 2019 @ 11:13am

    Re:

    He also spends a considerable portion of the article you linked acknowledging that there's a good argument to be made that what the OLC is doing is wrong.

    His issue is specifically with the "secret laws" portion of the narrative, not with the broader argument that Knight is making.

    reply to this | link to this | view in thread ]

  7. identicon
    Anonymous Coward, 4 Sep 2019 @ 11:36am

    attorney-client privilege

    But, aren't we the client?

    reply to this | link to this | view in thread ]

  8. icon
    JonC (profile), 4 Sep 2019 @ 12:15pm

    OLC memos (and other "deliberative" stuff) shouldn't be worth the paper they're printed on until they're made public. Once they do have meaning and force, they can't be deliberative anymore, so there should be no problem making them public.

    reply to this | link to this | view in thread ]

  9. icon
    Dan (profile), 4 Sep 2019 @ 1:02pm

    Re: Re:

    ...and the broader argument certainly has merit. The narrower argument that I quoted, however, doesn't. The broader argument can be made without adding bullshit.

    reply to this | link to this | view in thread ]

  10. icon
    biani (profile), 4 Sep 2019 @ 11:34pm

    o have meaning and force, they can't be deliberative anymore
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    reply to this | link to this | view in thread ]

  11. icon
    biani (profile), 4 Sep 2019 @ 11:36pm

    rajesh

    spends a considerable portion of the article you linked acknowledging that there's https://walmartone.tech/

    reply to this | link to this | view in thread ]

  12. icon
    biani (profile), 4 Sep 2019 @ 11:37pm

    spends a considerable portion of the article you https://survey-feedback.net/

    reply to this | link to this | view in thread ]

  13. icon
    eater (profile), 5 Sep 2019 @ 3:56am

    dqfansurvey

    houldn't be worth the paper they're printed on until they're made public. Once they do have meaning and force, they can https://dqfansurveyyy.xyz/

    reply to this | link to this | view in thread ]


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