Because they have the force of law within the executive branch, and because they often address topics of real consequence, the OLC’s opinions are frequently the subject of litigation under the Freedom of Information Act (FOIA).  Usually this litigation arises under the provisions of FOIA that require federal agencies to respond to requests for records.  Someone learns of the existence of an OLC opinion, requests it, and then sues to enforce the request when the OLC fails to respond, or when it claims the opinion is privileged.  Occasionally this kind of litigation results in important disclosures, but there’s something disturbingly backwards, and even undemocratic, about a system that allows the government to conceal and withhold opinions that have the force of law unless and until someone requests them.

On Tuesday morning in Washington DC, a federal district court will hear argument in a case that presents the question whether the OLC has an obligation to publish an index of its final written opinions, and to consider those opinions individually for possible release, even in the absence of any FOIA request.  (The Knight Institute represents the plaintiff.) The case, called Campaign for Accountability v. DOJ, doesn’t involve a conventional request for records.  Instead, it involves an effort to enforce FOIA’s “reading room” provisions, which impose an affirmative obligation on federal agencies to publish their final opinions, orders, policies, and interpretations.  Forty years ago, in Sears v. NLRB, the Supreme Court observed that these provisions reflect a “strong congressional aversion” to “secret law,” and it held that they require agencies to publish, even in the absence of any request from a member of the public, “all opinions and interpretations that embody [the agencies’] effective law and policy.”

The Campaign for Accountability case is important because, despite the clear applicability of the Supreme Court’s command to the kind of opinions OLC produces, the OLC doesn’t comply with the reading room provisions at all.  To the contrary, it views itself as entirely exempt from them.  As a result, the OLC has accumulated, over the years, a body of legal opinions that have the force and effect of law but whose very existence is concealed from the public.  It’s impossible to estimate the size of this hidden corpus, but it’s perhaps useful to note that a case litigated by the ACLU two years ago uncovered, more-or-less by accident, the existence of almost a dozen OLC opinions whose existence the OLC had not previously acknowledged.  A report published by the Brennan Center last year suggests there may be many more.

The OLC has accumulated, over the years, a body of legal opinions that have the force and effect of law but whose very existence is concealed from the public.  

The OLC contends that its opinions are categorically exempt from the reading-room provisions because these opinions constitute legal advice, not law.  But the description of the OLC’s formal written opinions as advisory is, at best, incomplete.   Within the executive branch, the OLC’s opinions are accorded essentially the same status as opinions of the U.S. Supreme Court.  Steven Bradbury, who led the OLC during President George W. Bush’s second term, wrote in 2005 that “OLC opinions are controlling on questions of law within the Executive Branch.” David Barron, who led the office during the Obama administration, observed in 2010 that the OLC is “frequently asked to opine on issues of first impression that are unlikely to be resolved by the courts—a circumstance in which OLC’s advice may effectively be the final word on the controlling law.” In litigation, the OLC describes its final opinions as advisory, but in fact it views these opinions as binding on federal agencies, and this is how the agencies view them, too. Many OLC opinions are better characterized as law than as legal advice.

In further defense of its non-compliance with the reading-room provisions, OLC points out that it has published hundreds of its opinions on its own initiative. These discretionary disclosures, though, aren’t a substitute for compliance with the reading-room requirements. The FOIA entitles the public to know what the law is, not just what the OLC wants it to know about what the law is. Discretionary disclosures may be selective, with, for example, the OLC disclosing opinions that place limits on government power but not ones that construe government power broadly. Recall that it was the Second Circuit, not the OLC, that published the OLC’s opinion green-lighting the “targeted killing” of Americans overseas.  And discretionary disclosures leave the public in the dark about the existence, and even number, of opinions that have not been disclosed.

The OLC also argues that requiring it to publish its final written memos would discourage agencies from seeking its advice in the first place.  This argument is overstated. First, no one contends that all of the OLC’s opinions are subject to the reading-room provisions; the focus is on the subset of final written opinions that constitute the government’s working law. Second, even as to those opinions, application of the reading-room provisions would not deprive the OLC of the right to withhold or redact information on privacy, national security, or other grounds. If the OLC were to comply with the reading-room provisions, it would have to publish a list of final written opinions that operate as controlling law within the executive branch, and it would lose its ability to withhold these opinions under the deliberative-process and attorney-client privileges. It would retain the right, however, to withhold or redact these opinions on other grounds.

Of course, one can’t rule out entirely the possibility that some agencies will hesitate to consult with OLC if the office becomes more transparent. In most instances, however, that hesitation is likely to be overcome by agencies’ desire for the legal certainty and cover that only the OLC can provide. (An OLC opinion is effectively an “advance pardon” for conduct that might otherwise be prosecuted, Jack Goldsmith, another former OLC chief, wrote in The Terror Presidency.)

Perhaps more importantly, Congress considered the possibility of a chilling effect when it enacted the reading-room provisions fifty years ago, and it concluded, as the Supreme Court noted in Sears, that the public’s fundamental interest in knowing the law should prevail over any government interest in preserving the confidentiality of legal advice.  Why this principle should apply to other agencies but not to OLC, the OLC doesn’t really say.  Given the unique role that the office plays in the executive branch, one would think that the principle would apply to the OLC with particular force.

The courts should compel the OLC to comply with the reading-room provisions—to publish an index of its final written opinions, to consider those opinions individually for possible release, and to justify withholdings and redactions by reference to FOIA exemptions other than those relating to the attorney-client and deliberative-process privileges.  Requiring the OLC to do these things wouldn’t compromise any legitimate government interest, but it would represent an important step toward eliminating what Congress meant to eliminate half a century ago—secret law.

“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, adriana.lamirande@knightcolumbia.org 

“This is a landmark decision in the long fight for public access to legal opinions issued by the Office of Legal Counsel,” said Alex Abdo, litigation director at the Knight First Amendment Institute. “The OLC’s opinions are the law of the executive branch, and the public has a presumptive right to see them. We’re hopeful that the government will begin to comply with this ruling right away.”

Sometimes called the “Supreme Court of the executive branch,” the OLC issues legal opinions governing the full range of executive powers, policies, and responsibilities. The OLC is a component of the Department of Justice that issues legal opinions that bind federal agencies on matters of significant public concern. 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.

In Friday’s ruling, the court held that OLC opinions resolving interagency disputes are “final opinions” that fall within FOIA’s proactive disclosure provision. The OLC issues these opinions when a dispute between two or more federal agencies turns on a disagreement over how to interpret the law. 

“As the court recognized, there is no place for secret law in a democracy. Requiring OLC to release its opinions will provide Americans greater insight into the decisions of our government,” said Michelle Kuppersmith, Executive Director of the Campaign for Accountability. “After nearly eight years of litigation, we hope OLC, finally, will expose its authoritative legal opinions to the light of day.”

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. On February 15, 2019, the Knight Institute submitted a request to the OLC for all of its formal written opinions issued prior to February 15, 1994, taking advantage of new legislation that limits the authority of federal agencies, including the OLC, to withhold memos that are more than 25 years old. When the OLC failed to release any opinions in response to this request, the Institute filed suit on behalf of five scholars, Campaign for Accountability, and the Institute itself. The Institute reached a settlement with the OLC in August 2021. Under that settlement, the OLC has provided the Institute with indices of OLC opinions written between 1945 and February 15, 1994, and released 230 of the opinions listed on those indices. It also disclosed a list of classified OLC opinion titles written between 1974 and February 15, 1994. These opinions and indices are available on the Knight Institute’s website in an OLC Reading Room.

The Institute also launched @OLCforthepeople, a Twitter (now X) account that alerts the public each time the OLC adds an opinion to its own online database—a process that generally happens without public notice. 

Read more about Campaign for Accountability v. DOJ here.

Access the Knight Institute’s OLC Reading Room here.

For more information, contact: Adriana Lamirande, adriana.lamirande@knightcolumbia.org.

“This is a groundbreaking decision for government transparency,” said Alex Abdo, Litigation Director at the Knight First Amendment Institute. “The Office of Legal Counsel’s opinions have essentially the same weight within the executive branch as the Supreme Court’s opinions do. The government’s refusal to make these opinions available to the public as a matter of course is both undemocratic and unlawful.”

The Justice Department’s Office of Legal Counsel (OLC) provides “formal written opinions” to federal agencies on issues ranging from national security to retirement benefits for federal employees to the lawfulness of immigration policy. Recently, the Trump administration relied on OLC opinions to justify its refusal to comply with subpoenas issued by the House of Representatives in its impeachment inquiry. The OLC’s formal opinions function as the authoritative law of the government, determining the policies and practices of all executive branch agencies, but OLC does not believe it has any affirmative obligation to release these opinions to the public.

The lawsuit contends that the OLC’s formal written opinions are subject to the Freedom of Information Act’s (FOIA's) “reading-room provision,” which obligates agencies to proactively process certain documents for release even in the absence of a specific request. In October 2017, the district court granted the government’s original motion to dismiss but afforded the Campaign for Accountability an opportunity to focus more narrowly on specific categories of OLC opinions. The Knight Institute filed an amended complaint highlighting several categories of OLC opinions — those (i) resolving interagency disputes; (ii) interpreting nondiscretionary legal obligations; (iii) finding particular statutes unconstitutional; and (iv) adjudicating or determining individual rights.

In yesterday’s ruling, the court found that OLC opinions resolving interagency disputes are likely “final opinions” and “statements of policy and interpretations” that must be proactively disclosed to the public. The OLC issues these opinions when a dispute between two or more federal agencies turns on a disagreement over how to interpret the law. According to at least one estimate, about a quarter of all OLC opinions sent to outside agencies fall into this category.

“While continuing to believe there is no place for secret law in a democracy, we’re pleased the court recognized that OLC opinions resolving interagency disputes qualify for public disclosure,” said Michelle Kuppersmith, Executive Director of the Campaign for Accountability.

A related case, Francis v. DOJ, brought by the Knight Institute on behalf of five scholars and the Campaign for Accountability, seeks OLC “formal written opinions” issued by the agency prior to 1994. In the past, the OLC has avoided complying with FOIA requests for its opinions by invoking a privilege that protects government deliberations. In 2016, Congress amended FOIA to eliminate that privilege for records over 25 years old. In response to that lawsuit the OLC has released more than 200 opinions, all of which the Knight Institute has made available in a text-searchable reading room. The Institute expects to receive more opinions in October.

“These memos are crucial to the public’s ability to understand government policy and hold government decisionmakers accountable for their decisions,” said Anna Diakun, Staff Attorney at the Knight First Amendment Institute. “The public is entitled to know what law is governing the Executive Branch, not just the small fraction of it that the OLC wants it to know.”

Read yesterday’s opinion here.

Read more about the lawsuit here. 

In addition to Abdo, lawyers on the case include Jameel Jaffer, Executive Director of the Knight Institute.  Daniela Nogueira and Greg Margolis worked on the case during their terms as legal fellows at the Institute.

For more information, contact: Lorraine Kenny, Communications Director, lorraine.kenny@knightcolumbia.org

The Justice Department’s Office of Legal Counsel (OLC) provides “formal written opinions” to federal agencies on issues of significant public concern, ranging from detention and interrogation practices and the targeted killing of Americans on foreign soil to retirement benefits for federal employees and the lawfulness of the Deferred Action for Childhood Arrivals (DACA) policy. These formal opinions function as the authoritative law of the government, determining the policies and practices of all executive branch agencies, but an unknown number remain hidden from public view because the Justice Department chooses what to disclose on a case-by-case basis. The lawsuit contends this violates the Freedom of Information Act and asks the court to require the Justice Department to disclose this secret law.

“The Office of Legal Counsel is often the last word on the law for the executive branch, yet it maintains an unknown number of secret opinions,” said Alex Abdo, a senior staff attorney at the Knight Institute who will argue before the court tomorrow. “The OLC’s refusal to disclose its secret law violates the Freedom of information Act as well as the basic principle that, in a democracy, the people must know what the law is.”  

The lawsuit contends that the OLC’s formal written opinions are subject to FOIA's so-called “reading-room provision,” which obligates agencies to proactively process certain documents for release even in the absence of a specific request. The district court granted the government’s original motion to dismiss but afforded the Campaign for Accountability an opportunity to focus more narrowly on specific categories of OLC opinions. The Institute has since filed an amended complaint highlighting several categories of OLC opinions — those (i) resolving interagency disputes; (ii) interpreting nondiscretionary legal obligations; (iii) finding particular statutes unconstitutional; and (iv) adjudicating or determining individual rights.

WHAT: Oral argument in lawsuit to compel the Justice Department to disclose secret legal opinions

WHERE: United States District Court for the District of Columbia, Judge Ketanji Brown Jackson (Courtroom 17), E. Barrett Prettyman United States Courthouse, 333 Constitution Ave. NW, Washington, D.C.

WHEN: 10:30 a.m., tomorrow, Friday, July 20

Read the opposition to the government’s motion to dismiss.

Read "The Office of Legal Counsel and Secret Law."

About the Knight Institute

The Knight First Amendment Institute is a non-partisan, not-for-profit organization established by Columbia University and the John S. and James L. Knight Foundation to defend the freedoms of speech and press in the digital age through strategic litigation, research, and public education. Its aim is to promote a system of free expression that is open and inclusive, that broadens and elevates public discourse, and that fosters creativity, accountability, and effective self-government.

The Justice Department’s Office of Legal Counsel provides “formal written opinions” to federal agencies on issues of significant public concern, ranging from targeted killing of Americans on foreign soil to retirement benefits for federal employees. These formal opinions are the authoritative law of the government, but an unknown number are hidden from public view because the Justice Department chooses what to disclose on a case-by-case basis. The lawsuit contends this violates the Freedom of Information Act and asks the court to require the Justice Department to disclose this secret law.

"The Office of Legal Counsel is violating the Freedom of Information Act by withholding final legal opinions that have the force and effect of law."Alex Abdo  

“The Office of Legal Counsel is often the last word on the law, deciding whether the government can target citizens for death without judicial involvement or wiretap their calls without a warrant,” said Alex Abdo, a senior staff attorney at the Knight Institute who will argue before the court tomorrow. “The Office of Legal Counsel is violating the Freedom of Information Act by withholding final legal opinions that have the force and effect of law.”

"Our nation was founded upon the ideal of an open democracy, yet the Office of Legal Counsel maintains a body of secret law,” said Campaign for Accountability Executive Director Daniel Stevens. “This is inimical to our values as Americans. The Office should adhere to the same rules as every other governmental institution and release its opinions.”

View the complaint.

About the Knight Institute

The Knight First Amendment Institute is a non-partisan, not-for-profit organization established by Columbia University and the John S. and James L. Knight Foundation to defend the freedoms of speech and press in the digital age through strategic litigation, research, and public education.

About the Campaign for Accountability

The Campaign for Accountability is a non-partisan, non-profit watchdog organization that uses research, litigation, and aggressive communications to expose misconduct and malfeasance in public life and hold those who act at the expense of the public good accountable for their actions.

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.

The OLC, which has been referred to as the “Supreme Court” of the executive branch, provides “formal written opinions” to federal agencies on a range of issues, including national security, the lawfulness of immigration policy, and benefits for federal employees. Its formal written opinions constitute final and authoritative pronouncements of the law within the executive branch. Nevertheless, the OLC publishes only a limited subset of these high-impact opinions. And, it fails to even provide a comprehensive index of its opinion titles, added Krent.

“President Biden and his administration could decide to make these opinions more public,” she said on the show. “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.” Krent added that the change in administrations provides an opportunity for “people coming into power to think about what they want their relationship to members of the public to be.”

Her entreaty echoed a recent call by the Knight Institute for the incoming administration to immediately order the OLC to publish its final, written opinions on an ongoing basis, redacting the opinions only as necessary to protect classified information or other material exempt from disclosure under the Freedom of Information Act, or FOIA. 

Krent emphasized that the OLC opinions have had a direct and important role in people’s lives, by analyzing whether, for example, government employees may be forced to undergo urine tests, or whether women were entitled to veteran’s benefits. The office has also played a huge role in defining the powers the president may wield in times of crisis, including most famously through its opinions authorizing the CIA and Defense Department to torture prisoners held in the wake of the Sept. 11 terrorist attacks.

The Knight Institute is currently pursuing two major cases involving the OLC, both revolving around FOIA. One, Campaign for Accountability v. DOJ, argues that the OLC’s failure to affirmatively disclose its formal written opinions violates FOIA’s “reading-room provision,” which obligates agencies to proactively disclose opinions or interpretations that have the force or effect of law. In that case, the Institute is currently litigating the narrower question of whether or not the OLC must proactively release opinions that resolve inter-agency disputes. The other Institute case, Francis v. DOJ, seeks disclosure of OLC opinions issued more than 25 years ago. Through that case, the Institute has already uncovered hundreds of previously unreleased OLC opinions.

“The Supreme Court has said over and over that the purpose of the Freedom of Information Act is to create an informed citizenry and to prevent secret law, which is really anathema to democracy,” concluded Krent. “That’s the purpose of transparency, to make clear what the government is doing so that if the public disagrees, it can voice its concern.”

Watch Knight Institute staff attorney Stephanie Krent discuss Office of Legal Counsel transparency on The Legal Edition.

Although the OLC is a relatively obscure office, it has a singular role within government: to decide what the law means, at least as far as the executive branch is concerned. Exercising that power, it has answered thousands of important legal questions within government—about the scope of executive power, the constitutionality of surreptitious surveillance, the lawfulness of covert operations, and much more.

The OLC has been described as the “Supreme Court of the Executive Branch” because its opinions bind federal officials on legal questions that rarely, if ever, make their way before a court. While the OLC’s opinions are generally kept secret, they’re occasionally released, giving us a glimpse into the world of secret law they’ve created.

The Bush administration relied on OLC opinions to justify its torture of detainees. The Obama administration relied on OLC opinions to justify its drone strike of a U.S. citizen in Yemen. And now the Trump administration is relying on OLC opinions to justify its refusal to comply with subpoenas issued by the House of Representatives in its impeachment inquiry.

Although its opinions resolve enormously consequential and often constitutional questions about the limits of the government’s power, the OLC has refused the many demands made over the years for it to systematically make its opinions public. Instead, the OLC has published its opinions selectively, leaving the public with a piecemeal understanding of the important role it plays within government, and of the legal interpretations it has imposed upon it.

The rationale that the OLC has offered in defense of its excessive secrecy is not persuasive.

In an ongoing lawsuit by the Campaign for Accountability (represented by the Knight First Amendment Institute at Columbia University, where I work), the OLC has argued that its legal opinions are merely advisory, and that publishing them would expose, and thereby chill, government deliberations.

Generally speaking, neither of these things is true. For over 200 years, federal officials have treated opinions issued by the OLC (and its predecessors) as binding. This includes Robert Mueller, who, as special counsel, felt bound by the OLC’s conclusion in 2000 that it would be unconstitutional to indict or prosecute a sitting president. The history shows that these opinions are not advisory; they’re binding, unless superseded by a later OLC opinion or displaced by a federal court ruling on point. In their effect on the executive branch, they’re nearly indistinguishable from federal court rulings, which are also binding unless superseded by a later opinion or displaced by a higher court ruling.

It is also not quite accurate to say that publishing the OLC’s opinions would reveal government deliberations. Quite often, the OLC’s opinions put the finishing legal touches on policy decisions already made, as when the Department of Homeland Security sought OLC assurance that the Deferred Action for Childhood Arrivals program—known as “DACA”—was lawful. Other times, the OLC’s opinions are sought when a policy dispute between two agencies turns on a legal dispute, as when the U.S. Postal Service and the Office of Personnel Management disagreed about whether postal employees were entitled to retirement credit for the period of time that the Postal Service had defaulted on its retirement contributions.

To be sure, sometimes the OLC says “no,” and publishing those opinions might disclose policies considered but never implemented. Even in that circumstance, however, the OLC’s opinions serve as crucial precedent that binds the government and that shapes the OLC’s own future opinions. It is also apparently common for the OLC to alert a requesting official when the agency intends to say “no,” to give the official a chance to rescind the request.

For decades, then, the government has relied on the OLC as a secret Supreme Court, to settle legal disputes and decide important questions about executive power and individual rights. It is not enough for the OLC to release these opinions selectively. In a democracy, the public must be able to judge for itself, and in the light of day, the legal rules that shape our government.