NEW YORK – The Knight First Amendment Institute at Columbia University today published 96 Office of Legal Counsel (OLC) opinions it obtained in connection with ongoing litigation under the Freedom of Information Act (FOIA). All of the opinions date from 1974, the last year of the Nixon administration. The Institute sought the records as part of a broader and ongoing effort to vindicate the public’s right of access to the OLC’s formal written opinions, which are treated as controlling law within the executive branch.
“Despite their importance, the majority of the OLC’s legal opinions are secret, which means the public is in the dark about the government’s interpretation of laws relating to national security, war, immigration, civil rights, and more,” said Anna Diakun, Staff Attorney at the Knight Institute. “These memos should be made public as a matter of course, and certainly not withheld for decades. We’re pleased with today’s release and look forward to similar releases of memos from other years.”
Sometimes called the “Supreme Court of the executive branch,” the OLC issues legal opinions governing the full range of executive powers, policies, and responsibilities. Its formal written opinions constitute final and authoritative pronouncements of the law within the executive branch. In recent years, OLC memos have provided the legal foundation for many controversial government policies, including those relating to the torture of prisoners, warrantless wiretapping, and the use of drones to carry out extrajudicial killings overseas.
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. Recent legislation provides that the OLC cannot rely on the “deliberative process” privilege with respect to memos that were written more than a quarter-century ago. When the OLC failed to release any opinions in response to its request, the Knight Institute filed a lawsuit, Francis v. DOJ, on behalf of five scholars, Campaign for Accountability, and the Institute. Since August, the Knight Institute has been working with the OLC to secure the release of those opinions. The opinions posted today, all written in 1974, mark the first in a series of rolling productions the OLC will make in this case.
Today’s release includes 96 legal opinions as well as an index of all unclassified OLC opinions written in 1974. The opinions range from short one-page responses to in-depth legal analyses, and together total 435 pages. They cover the final year of President Nixon’s administration and concern the use of the subpoena power against sitting presidents, the scope of mandatory drug testing programs, wiretapping of U.S. citizens abroad, First Amendment protections for U.N. officials, and the appointment of women to military service academies. They are not only rich historical texts; they form a system of precedent within the executive branch and are still relied on today.
“The OLC should not be creating a system of controlling legal precedent that is hidden from the public for decades,” said Stephanie Krent, Legal Fellow at the Knight Institute. “Legal opinions that constitute the government’s ‘working law’ should be made public presumptively, and withheld only in very narrow circumstances.”
The litigation that led to today’s disclosure is part of a broader effort on the part of the Knight Institute to vindicate the public’s right of access to the OLC’s formal legal opinions. In another case, the Institute is arguing that the Freedom of Information Act requires the OLC to publish its legal opinions presumptively, even in the absence of any FOIA request seeking their release. In that case, Campaign for Accountability v. DOJ, the Institute contends that the OLC’s formal opinions are the government’s “working law” and are therefore subject to FOIA’s affirmative disclosure provisions.
The opinions published today are available in a Knight Institute reading room here.
For more information, contact: Lorraine Kenny, Communications Director, Knight First Amendment Institute, firstname.lastname@example.org