Recently Ryan Reilly, a reporter at the Huffington Post, tweeted out a picture of a list of unclassified opinions by the Office of Legal Counsel in 2013 that he received in response to a Freedom of Information Act (FOIA) request. The problem? The title of all but one of the memos listed was redacted using FOIA's Exemption 5, which (as we highlighted in recent testimony before the Senate Judiciary Committee) is known among FOIA requester's as the "we don't want to give it to you exemption."
— Ryan J. Reilly (@ryanjreilly) April 24, 2014
Reilly's response reinforces both the need for Congress to reform the FOIA, and the Administration's need to take much more aggressive steps if it is going to be judged as meeting President Obama's promise of "unprecedented levels of openness in Government."
The reason this one FOIA response is so important is because memos by the Department of Justice's (DOJ) Office of Legal Counsel (OLC) can have a massive effect on what and how the government does. You probably have heard OLC memos come up several times in the context of the Bush Administration's torture program, the targeted killing programs, and the National Security Agency's expansive surveillance programs. Defenders of allowing OLC to operate in secrecy often claim that the office provides confidential legal advice to the President, and as such cannot make its opinions public. In actuality, though, once an OLC memo has been adopted, it becomes the government's authoritative interpretation of the law, effectively becoming the policy all agencies must follow.
The fact that the DOJ is using Exemption 5 to withhold the material is also particularly important. The use of Exemption 5 rather than Exemption 1 makes it very clear that none of the information on the list is classified, and that all of the titles could be released without harming national security (DOJ is actually refusing to tell Reilly even the number of classified memos it issued in 2013). Unlike Exemption 1, DOJ has the discretion to release information that falls under Exemption 5. Under Attorney General (AG) Holder's FOIA guidelines, agencies are directed to use that discretion to release information. Deciding to release no new information about OLC's unclassified memo's aside from what is already available on DOJ's website, implies the AG's guidelines are not being followed (We recently discussed concrete steps DOJ should take to make sure FOIA processors are applying the AG's guidelines).
At a very basic level, there are at least two reasons that OLC memos, particularly those that are not classified, should readily be available to the public. Number one: members of the public must be able to understand how the government is interpreting the law in order to make informed choices about how we want to be governed. Number two: FOIA requires the government to publish its policies, therefore the government has a legal obligation to publish the memos (learn more about this argument from our partner, Citizens for Responsibility and Ethics in Washington — CREW). During our recent meeting with the Department of Justice, we also encouraged them to set up a process to review sensitive OLC memos for disclosure.
In recent years, even people who are or were in leadership positions at OLC have argued that there needs to be more transparency around the office's memos. OLC's own Best Practices states that the office should operate "from the presumption that it should make significant opinions fully and promptly available to the public" and stresses that "timely publication of OLC opinions is especially important." Dawn Johnsen, who was nominated to lead the office in 2009, similarly argued for OLC to "disclose its written legal opinions in a timely manner."
The benefits of timely publication of OLC memos, as noted by both OLC’s Best Practices document and Johnsen's paper, include guarding against governmental overreaches, and promoting the public's confidence that the government is obeying the law. Clinging to claims for the need for secrecy, as OLC has done in its response to Reilly, tends to have the opposite effect: raising concerns that the government is not adhering to the rule of law, and reaffirming that we cannot trust that it is doing so.