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Court: DOJ Opinions May Be Withheld

NEW YORK, NY - DECEMBER 11: A US Department of Justice seal is displayed on a podium during a news conference to announce money laundering charges against HSBC on December 11, 2012 in the Brooklyn borough of New York City. HSBC Holdings plc and HSBC USA NA have agreed to pay $1.92 billion and enter into a deferred prosecution agreement with the U.S. Department of Justice in regards to charges involving money laundering with Mexican drug cartels. (Photo by Ramin Talaie/Getty Images)
By William Vogeler, Esq. on May 06, 2019 9:00 AM

The government has created a body of secret law, and it should be open to the public. That's what a watchdog group said in Citizens for Responsibility and Ethics in Washington v. United States Department of Justice. But the DC Circuit Court of Appeals disagreed and voted to dismiss the complaint. In dissent, one judge said the plaintiff deserved a chance to make its case in open court.

Unless there is an appeal, however, that case is closed.

Legal Opinions

The dispute came up after CREW, a non-profit advocacy group, demanded the Department of Justice make Office of Legal Counsel opinions available to the public. The OLC refused, claiming that its legal opinions are confidential and that pre-decisional legal advice can be withheld.

"What is the DOJ hiding?" asked CREW executive director Melanie Sloan. "Why exactly shouldn't Americans understand how the administration interprets the laws governing our nation?" The advocacy group invoked the "reading room" provisions of the Freedom of Information Act to compel disclosure of all OLC opinions. The law obliges agencies to "make available for public inspection" certain documents, including "final opinions."

On the other hand, the DC Circuit noted, the OLC did not allege sufficient facts that all opinions are subject to disclosure. "Importantly, CREW does not allege that all of the OLC's formal written opinions have been adopted by any agency as its own," the majority said.

'Remote and Unlikely'

Judge Cornelia Pillard saw it differently. She said it was too early in the case to determine how much -- if any -- of the OLC's output might be subject to disclosure. She said a well-pleaded complaint may proceed even if the facts seem improbable and "that recovery is very remote and unlikely."

"The sole issue before us is the threshold question whether CREW has alleged enough to survive a motion to dismiss," she wrote. "Because I believe that it has, I would reverse the contrary judgment of the district court."

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