Knight Institute and Campaign for Accountability Urge Proactive Disclosure of “Secret Law” Governing Executive Branch

August 16, 2018

The Knight First Amendment Institute at Columbia University and Campaign for Accountability yesterday filed an amicus brief urging a federal appeals court to rule that the Office of Legal Counsel (OLC) must proactively process its formal written opinions for public release under the Freedom of Information Act.

“The Office of Legal Counsel’s formal written opinions have become the shadow law of our democracy,” said Alex Abdo, a senior staff attorney at the Knight Institute. “The Freedom of Information Act requires the government to expose this secret body of law to the light of day.”

"The Office of Legal Counsel has created a large body of secret law, and government lawyers are the only ones who know what it says,” said Daniel Stevens, executive director of Campaign for Accountability. “The Department of Justice's refusal to release its legal opinions directly contradicts our country's core belief in the rule of law. It’s time for the court to put an end to this practice and force the Department of Justice to release its legal opinions." 

The brief, submitted in the lawsuit Citizens for Responsibility and Ethics in Washington v. Department of Justice, contends that the OLC’s formal written opinions, which address the legality of policies on issues ranging from immigration to national security, function as the authoritative law of the executive branch. The Freedom of Information Act’s “reading-room” provision, as interpreted by the Supreme Court, requires agencies to proactively process for release agency records that have “the force and effect of law.” At present, however, the Justice Department discloses only certain OLC formal opinions on a case-by-case basis. The brief asks the court to hold that the OLC is required to proactively disclose its formal opinions as a general matter.

Campaign for Accountability, represented by the Knight Institute, is litigating a lawsuit, filed in 2016, that likewise seeks to establish that the OLC’s formal written opinions generally have “the force and effect of law,” and must therefore be proactively processed under FOIA. Last month, the Knight Institute argued the suit before the United States District Court in Washington D.C., and a decision is pending.

Download the amicus brief.

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.

About Campaign for Accountability

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.