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Court hears fight over secret Justice Department legal opinion

A federal appeals court heard a case Tuesday that spotlights the Justice Department's claim of near-complete discretion over which formal legal opinions it makes public and which remain hidden from public view.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit took up a lawsuit brought by the Electronic Frontier Foundation seeking an Office of Legal Counsel opinion dealing with circumstances where federal officials could ignore a law regulating surveillance—the Stored Communications Act.

Most legal advice government lawyers give their clients is not required to be released under the Freedom of Information Act because of a "deliberative process privilege" designed to make sure that decisionmakers get candid advice. However, when a legal opinion amounts to "secret law" dictating an agency's actions or is expressly adopted by an agency as legal justification for its acts, the opinion can lose its advisory nature and be subect to disclosure.

Two judges on the panel, Harry Edwards and Sri Srinivasan, seemed open to EFF's arguments during the roughly 40-minute session, although they gave no clear indication of their ultimate view of the case. Judge David Sentelle was openly hostile to disclosure of the opinion. He indicated early in the argument that he views lawyers' advice as basically immune from FOIA.

"Isn’t that quintessentially predecisional? What could be more predecisional than giving advice?" asked Sentelle, a Reagan appointee.

"When the Attorney General offers his advice, it's not advice," EFF attorney Mark Rumold said. "It becomes the agency's law because of the nature of the office." He argued that when the person receiving a legal memo has authority to disregard it, it's simply advice, but when he or she doesn't, it's more in the nature of a command.

Rumold said that when OLC gives advice to the president or to the attorney general, they can choose to disregard it (as President Barack Obama sometimes has) but everyone else in the executive branch basically has to salute and obey.

Edwards, a Carter appointee, said it wasn't entirely clear that agencies couldn't choose to ignore an OLC opinion, even if they never have. "It's not necessarily conclusive that it's the law....It may or may not be accepted," he said.

Sentelle worried that broadly disclosing OLC opinions would discourage agencies from consulting with their lawyers or DOJ lawyers. "You're saying they can't give advice if they're not willing to have that advice disclosed?" he asked

"This is classic deliberative process material," insisted Justice Department lawyer Daniel Tenny, arguing the FBI might never have approached OLC if the FBI thought its inquiry or the resulting opinion would be made public.

Edwards quickly noted, however, that OLC does publish opinions when it sees fit.

Tenny said OLC does so only after consulting with the agency requesting the opinion and weighing any concerns.

Edwards observed that while opinions could contribute to policymaking, the one at issue in the EFF lawsuit seems to have been generated to establish the legality of something the FBI was doing, not to form a decision for future activitiy. He also suggested that when the FBI's general counsel referred to the opinion at a Congressional hearing, she was trying to build public confidence in the lawfulness of the agency's actions.

But Tenny insisted that the only decision the public could enforce access to through FOIA those at the FBI, not OLC's legal opinions unless the FBI expressly adopted the OLC ruling, which he said Caproni had not done.

"The thing that gives [the FBI] the authority to do what they're doing is not the OLC, but the statute," Tenny said.

Srinivasan noted that the D.C. Circuit previously ruled that OLC opinions regarding tax law must be disclosed, but Tenny said the surveillance-related OLC opinion EFF sought is different than a tax ruling. "That is a legal determination that applies to the public," the DOJ lawyer said.

"I'm not understanding the distinction," replied Srinivasan, Obama's only appointee thus far to the D.C. Circuit. The judge said the opinion wasn't "hermetically sealed from the public" since it regulated FBI activity that affected the public.

"There's an extra step of remove" from the public, Tenny insisted.

Srinivasan also asked Tenny if the FBI would be free to disregard the OLC opinion.

"We don't expect them as a matter of practice to blatantly contradict it," Tenny said.

Rumold said courts in past cases did not require requesters to show that there was no authority to disregard the legal opinion in order to force disclosure. He said a widely-prevailing practice treating such memos as directives was sufficient to vitiate their advisory character. "That has been enough," the EFF lawyer said.

The trial court judge who heard the case, Richard Leon, sided with the government. In a ruling last year, he said the entire opinion was protected by deliberative process and attorney-client privileges.

The Justice Department said portions of the opinion were classified "secret" on national security grounds, but other parts were unclassified. The national security classifications were not challenged or discussed during Tuesday's arguments.