The Knight Institute is renewing calls for the Biden administration to routinely make public the final legal opinions of the Justice Department’s Office of Legal Counsel.
The OLC’s opinions effectively determine a wide range of federal policies and practices but are only released at the discretion of the OLC itself. In recent years, the Institute has repeatedly sought publication of final OLC opinions as a matter of course, excluding those containing classified information or information otherwise exempt from disclosure under the Freedom of Information Act.
The Institute raised the issue again last December with the incoming Biden administration. And in a January appearance on The Legal Edition, a video news program, Institute staff attorney Stephanie Krent noted, “President Biden and his administration could decide to make these opinions more public. There’s nothing preventing him from telling the OLC to go back through its archives to publish those opinions, and to do so on a forward-looking basis as well.”
Most recently, at a Nov. 18 webinar on oversight and accountability sponsored by the American Constitution Society, Institute Director Jameel Jaffer raised the issue afresh, calling for administration action. “The regime that we have right now is one in which the only OLC opinions the public has access to are the ones that the executive branch wants the public to have access to,” said Jaffer. “That’s a problem.”
That lack of transparency, he added, insulates the OLC opinions from public scrutiny, disables Congress from playing its oversight role, and imposes an unacceptable cost to public debate and self-government.
View Jaffer’s remarks on OLC here.
And read more about the Institute’s FOIA lawsuit seeking proactive disclosure of OLC’s secret legal opinions here.
A. Adam Glenn was a writer/editor at the Knight First Amendment Institute.