FOIA's Deliberative Process Privilege Protects OLC Opinion

By Jenny Tsay, Esq. on January 07, 2014 | Last updated on March 21, 2019

The Court of Appeals for the D.C. Circuit held that FOIA's deliberative process privilege allows the Department of Justice to deny a request for an Office of Legal Counsel (OLC) Opinion.

The OLC Opinion requested by the Electronic Frontier Foundation (EFF) discusses the FBI's authority to request phone records from service providers, but the request was denied after appealing to the D.C. Circuit.

So, how does this case affect FOIA requests?

The OLC Opinion Isn't "Working Law"

In Electronic Frontier Foundation v. U.S. Department of Justice, the issue was whether FOIA's deliberative process privilege applies to a specific OLC Opinion. The requested OLC Opinion allegedly authorized the FBI to obtain telephone records from service providers under certain circumstances without needing due process or a "qualifying emergency."

The DOJ denied the EFF's request based on deliberative process privilege. The privilege allows the government to deny FOIA requests for documents that relate to their decision making process -- unless those documents were expressly used or cited in an adopted law or policy. So if OLC opinions are used to justify adopted laws, they're called "working law" and accessible to the public.

In EFF, the court held that the OLC Opinion wasn't working law because it merely provided legal advice for the FBI's consideration. Since the FBI didn't implement the opinion in any of its decisions or policies and because the OLC doesn't make FBI policy, the D.C. Circuit upheld the district court's decision to deny the FOIA request.

How This Case Affects FOIA Requests

FOIA's deliberative process privilege wouldn't have blocked the EFF from getting their hands on the OLC Opinion if the FBI expressly adopted or incorporated the memo by reference, states the court.

This case is different from the ACLU's FOIA request for the FBI's data and notes on its Domestic Investigations and Operations Guide. The FBI released some data, but withheld other pertinent documents. In ACLU, the Sixth Circuit denied the ACLU's FOIA request for the rest of the data until it could determine the harms in releasing it.

The takeaway here is that unless a government agency implements a decision and expressly adopts or cites an OLC Opinion in that decision, then it's safe to assume your FOIA request will be denied under the deliberative process privilege.

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