Oral Argument in Suit to Force Justice Department to Disclose “Secret Law”

July 19, 2018

Tomorrow, Friday, July 20 at 10:30 a.m., the Knight First Amendment Institute will argue in the United States District Court in Washington D.C. that the Department of Justice’s Office of Legal Counsel must proactively process its formal written legal opinions for possible release under the Freedom of Information Act (FOIA). These opinions comprise the law of the executive branch. The Knight Institute is representing the Campaign for Accountability in the lawsuit.

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.