by Daniel Schuman and Adeeb Sahar
The Department of Justice is withholding from online publication 39% (or 201) of its 509 Office of Legal Counsel opinions promulgated between 1998 and 2012, according to a Sunlight Foundation analysis. This apparently conflicts with agency guidance on releasing opinions to the public as well as best practices recommended by former Justice Department officials.
OLC opinions are the Justice Department's authoritative legal advice to the executive branch on questions central to the functioning of government. Publication of opinions allow Congress and the public to review executive branch determinations on the lawfulness of policy options, thereby providing information necessary for oversight, historical, and precedential purposes.
In a 2010 memo, the Department of Justice endorsed “the presumption that [OLC] should make significant opinions fully and promptly available to the public.” Nineteen former DOJ officials, including Obama's first nominee to head the OLC, went further in a 2006 article, where they embraced the principle that “OLC should publicly disclose its written legal opinions in a timely manner, absent strong reasons for delay or nondisclosure.”
The Sunlight Foundation reviewed a document listing OLC opinions issued over a 15-year span that was published on the Government Attic, a website that contains federal agency responses to FOIA requests. A careful reading of the FOIA response allowed us to determine that at least 509 opinions were issued between January 1998 and March 28, 2012.* The DOJ redacted the titles of 36% (184) of the opinions from the document, citing FOIA Exemption 5 (deliberative process or attorney-client privilege) in every instance. An additional 3% (17) of the opinions had some words redacted from their titles, with FOIA exemption 6 (invasion of personal privacy) cited each time.
The OLC maintains a webpage dedicated to online publication of opinions it has determined "are appropriate for publication." It maintains a separate online "OLC FOIA Reading Room" that contains documents "disclosed through discretionary release, but ... not selected for official publication." We counted the number of opinions that were identified by title and the number of opinions whose full text was available online. We also identified the titles of 64% (325) of the opinions through a review of the FOIA response document. Comparing the webpages against the FOIA response, we identified the titles of an additional 21 opinions not listed in the FOIA response.
Using this aggregated list of 346 opinion titles, we found that the OLC failed to publish the full text of 7% (38) of the opinions whose titles had been released to the public via the FOIA response or on the OLC's official webpages. Of the 38 opinions, we found the full text of 5% (24) of the reports on the Internet using a Google search.
Based on numerous inconsistencies among the FOIA response and the OLC webpages, the withholding of 2/5ths of OLC opinions from the public, and administration policy that is supposed to favor transparency, we believe the Department of Justice must make significant efforts to improve its procedures regarding public access to OLC opinions. We asked the DOJ to publish the full text of the 24 opinions on its website, but it did not respond to our request. Similarly, our request to identify the remaining 163 titles went unanswered.
The Obama administration published a slightly higher percentage of its OLC opinions online when compared to its predecessor. From inauguration until March 28, 2012, the Obama administration published 63% (40 of 63) of its OLC opinions online. The Bush administration's published 55% (54 of 98) of its second term opinions online, and published 11% (20 of 187) of its first term OLC opinions online by January 20, 2005. The Bush administration issued OLC opinions at a significantly higher rate than Obama. Without knowing the content of the withheld opinions, it is not possible to judge their relative importance.
Office of Legal Counsel opinions provide an important window into how the executive branch interprets laws and constrains agency behavior. During the Bush administration, the misuse of OLC memos combined with unwarranted secrecy about their existence was a major spark to the controversy over the use of torture during interrogations, among many other issues. Similar concerns have been raised regarding the Obama administration. While there is undoubtedly a need for some opinions to be closely held, an approximately two-fifths withholding rate (both overall and for the Obama administration) most likely is too high. With the release of some of these opinions to the public through channels other than OLC webpages, it is apparent that the review process for online publication is not functioning properly.
The Office of Legal Counsel should refresh its website to indicate how many memos are issued each year. It should adopt the default of releasing all memos, not just the ones it deems “significant” (as such a distinction invites abuse and mistrust), and should do so prospectively and retrospectively. Where it cannot release an opinion in its entirety, the OLC should release versions that are redacted as lightly as possible. At a minimum, the titles of opinions should be released, and if even that raises insurmountable issues, descriptions of memos should be available in their stead. Finally, the administration should consider bringing in a trusted reviewer from outside the executive branch who can credibly (and publicly) make recommendations about the release of additional opinions.
[*] The Government Attic incorrectly identified the date range of the document in its cover page.