Advisory: Landmark FOIA Proactive Disclosure Ruling on Office of Legal Counsel's Opinions on Executive Agency Disputes

In a significant ruling for transparency and accountability, a federal district court recently ruled that the Justice Department’s Office of Legal Counsel (OLC) is subject to FOIA proactive disclosure requirements for all of its formal legal opinions resolving disputes between executive agencies. This decision was litigated by the Knight First Amendment Institute at Columbia University on behalf of the Campaign for Accountability. 

The ruling pertains to the “reading-room” provision of the Freedom of Information Act (FOIA), which mandates that the OLC must proactively disclose certain records to the public. Specifically, the court held that OLC opinions resolving interagency disputes qualify as “final opinions” within the FOIA proactive disclosure provision. 

The OLC issues legal opinions that govern executive powers, policies, and responsibilities. These opinions, binding federal agencies on matters of significant public concern, cover a wide range of topics from surveillance to detainee treatment to federal employee benefits. Only a fraction of these opinions have been made public until now. 

Action Required: As per the court’s ruling, the OLC is mandated to disclose all formal legal opinions resolving disputes between executive agencies. The agency must ensure prompt compliance with this directive. 

Agency Advisory: This opinion reaffirms that all executive agencies need to be mindful that FOIA is far from settled in its application. Agencies should expect additional rulings on proactive disclosures and should strive to conduct frequent reviews of their own records that might ultimately be deemed subject to proactive disclosure and for which they could be faulted for not having proactively disclosed.  

Proactive disclosure helps increase transparency, build public trust, decrease litigation instances, and reduces the volume of individual requests – all of which can decrease administrative burdens, decrease costs, and improve efficiency in handling public information inquiries. 

Key Points for OLC Compliance with FOA Proactive Disclosure for Legal Opinions on Agency Disputes:

1. Immediate Disclosure: The OCL must promptly release all opinions resolving interagency disputes to fulfill their obligations under FOIA’s reading-room provision. 
2. Transparency and Accountability: Compliance with the court’s ruling enhances transparency and accountability within the government, fostering public trust and confidence. 
3. Promoting Public Understanding: By making these legal opinions accessible, the OLC will continue to contribute to public understanding of government actions and decisions, enriching democratic discourse. 
4. Legal Review: Agencies should consider conducting a thorough review of their OLC opinions inventory to identify and disclose relevant documents in accordance with the court’s ruling. 

Agencies are urged to take immediate steps to fulfill their obligations under FOIA and contribute to a more informed and engaged citizenry.