Justice Department's Secret Legal Opinions Sought in Court

A transparency group is taking the Justice Department to court over whether the confidential opinions of the department’s Office Legal Counsel are covered by the Freedom of Information Act.

The nonprofit Campaign for Accountability on Wednesday, following months of back-and-forth correspondence, filed a complaint in the U.S. District Court for the District of Columbia asking that Justice to disclose all unpublished binding Office of Legal Counsel opinions.

“The Office of Legal Counsel interprets the law for the executive branch,” said campaign Executive Director Anne Weismann in a release. “In a democratic society, everyone has the right to know what the law is. By refusing to reveal its opinions, OLC is creating a secret body of law that erodes the ideals upon which our nation was founded.”

Weismann's group argued that its efforts to hold public officials accountable for malfeasance or misconduct are harmed by Justice’s refusal to release the opinions that it believes are covered under FOIA.

The office, currently led by acting Assistant Attorney General Karl Remón Thompson, is the legal adviser for the entire government. It has weighed in on the legality of administration policies such as President Obama’s controversial 2014 immigration executive order, the use of torture and policies on killing Americans abroad.

In a May 26 letter to the Campaign for Accountability, Deputy Assistant Attorney General John Bies said the office is “committed to comply with our obligations” under FOIA but defended its duty to keep confidential its “non-final” decisions that may not have been adopted by agencies.

“OLC does not have policymaking authority, nor does it enforce laws nor adjudicate the rights of private individuals,” he wrote. Hence OLC's advice is protected under attorney-client and deliberative process privileges, the office argued. “We make an individualized, case-by-case determination with respect to whether each opinion of our office is appropriate for publication.”

Weismann, whose group had written the department in March requesting the opinions, rebutted, “What possible interest can our government have in hiding the law from its own citizens? The Justice Department should recognize the futility of its position and immediately disclose OLC opinions.”

The Justice Department did not respond by publication time with comment on the new litigation.