WASHINGTON—A federal court of appeals ruled today that the Justice Department’s Office of Legal Counsel (OLC) is not violating the Freedom of Information Act (FOIA) by failing to affirmatively disclose legal opinions that are binding on the executive branch, including those that resolve inter-agency disputes, adjudicate private rights, and interpret non-discretionary legal duties. The case, litigated by the Knight First Amendment Institute at Columbia University on behalf of the Campaign for Accountability, involves FOIA’s “reading-room” provision, which requires agencies to proactively disclose certain records to the public.

“This is a disappointing and frustrating ruling. In a democracy, the public should know what the law is,” said Alex Abdo, litigation director at the Knight First Amendment Institute. “The court’s decision is based on the theory that the government’s binding legal opinions aren’t the law until a federal agency applies them, but this defies common sense. Unfortunately, this ruling means that, at least for now, the government will continue to withhold from the public legal opinions that have far-reaching implications for individual rights and our democracy.”

Sometimes called the “Supreme Court of the executive branch,” the OLC is a component of the Department of Justice that issues legal opinions governing the full range of executive powers, policies, and responsibilities. These opinions are the authoritative law of the government on subjects ranging from warrantless surveillance to the torture of detainees to retirement benefits for federal employees. Although these opinions often implicate questions of overwhelming public concern, the OLC has published only a fraction of them.

“There is no room for secret law in a democracy,” said Michelle Kuppersmith, executive director of the Campaign for Accountability. “The American public has every right to know how OLC is interpreting and directing federal agencies to apply our laws .  

The Knight Institute and Campaign for Accountability also secured the release of hundreds of historical OLC opinions through a separate Freedom of Information Act lawsuit, Francis v. DOJ. 

Read today’s decision here.

Read more about Campaign for Accountability v. DOJ here.

Access the Knight Institute’s OLC Reading Room here.

For more information, contact: Adriana Lamirande, [email protected]