Improving Congress and Public Access to OLC Opinions: An Update on Congressional Activity

This blogpost summarizes some recent legislative developments concerning opinions issued by the Justice Department’s Office of Legal Counsel. By way of background, OLC interprets the U.S. Constitution, federal statutes, and federal regulations. For many (but not all) matters within the executive branch, the opinions are considered authoritative. For example, the Department of Justice, as a matter of policy, will not prosecute people who violate the law so long as they are following OLC guidance, and OLC opinions are used to resolve legal disputes between agencies.

The executive branch withholds from Congress and the public not only the content of many of these opinions but also basic information about them, such as when and to whom they are issued, the subject of their analyses, and even how many are currently in effect. OLC is supposed to provide an impartial interpretation of the law, but it has issued opinions that are at variance with interpretations of law made by Congress and the courts. At times, OLC has acted more as a champion for expanding executive branch power or as an advocate for the president as opposed to serving as a neutral advisor. A number of its opinions are at the center of ongoing litigation.

During the FY 2020 appropriations cycle, Demand Progress submitted testimony to House Appropriators and Senate Appropriators that, if adopted, would have resulted in report language requesting the Justice Department provide to the Appropriations Committees a list of final OLC opinions currently in effect, and identify, for each opinion, who signed the opinion, who received it, the date it was issued, and the opinion’s title. This would not have required publication of all the opinions, although that would be a welcome development. The Justice Department publishes a subset of its opinions online.

For an opinion to be considered “final” to be included in the report, it would have to meet one of the following criteria: (1) be designated by the Attorney General or his designee as final; or (2) government officials or government contractors are following its guidance; or (3) it has been relied upon to formulate current legal guidance; or (4) it is directly or indirectly cited in another final Office of Legal Counsel opinion.

In June 2019, the House of Representatives passed the House Commerce, Justice, Science Appropriations bill, which included strong report language on OLC opinions that requested a report containing a list of all OLC opinions currently in effect that met the definition of “final.”

Office of Legal Counsel (OLC) opinions.—Not later than 90 days after enactment of this Act, the Department shall submit a report to the Committee that lists each OLC opinion currently in effect that has either been: designated by the Attorney General or his designee as final; followed by government officials or government contractors; relied upon to formulate current legal guidance; or cited in another final Office of Legal Counsel opinion. For each such opinion, the Department shall include: (1) the signer of the opinion; (2) the recipient identified in the opinion; (3) the date of issuance; and (4) the title of the opinion, subject only to redactions provided for by law and where the need to protect a specific interest outweighs the public interest in disclosure.

In the Senate, the Senate Commerce, Justice, Science Appropriations bill was favorably reported by the Appropriations committee but it did not receive full Senate consideration. Its committee report did not include any language regarding transparency at OLC. Unlike legislative text, committee report language does not need to be identical between the chambers; it is considered persuasive (but not binding) so long as there is no contradictory or superseding language.

However, when Congress enacted the omnibus appropriations bill for FY 2020 in December, it included a Joint Explanatory Statement that superseded the House language on OLC. Instead of requiring a list of all OLC opinions, it included a request for OLC to publish all legal opinions and other materials appropriate for publication.

Office of Legal Counsel (OLC) opinions.-ln lieu of House report language regarding OLC, the Attorney General is strongly urged to direct OLC to publish all legal opinions and other materials that are appropriate for publication – in particular those materials that are the subject of repeated requests or that may be of public or historical interest.

What does “appropriate for publication” mean? No one knows, although one must assume OLC will point to its cramped guidance on Best Practices for OLC Opinions as defining what constitutes appropriate for publication. It is worth noting, however, that a 2004 letter written by many former OLC attorneys, entitled Principles to Guide of the Office of Legal Counsel, includes the following pro-transparency principle: “OLC should publicly disclose its written legal opinions in a timely manner, absent strong reasons for delay or nondisclosure.”

In parallel, members of the House of Representatives introduced OLC transparency legislation, the See UNdisclosed Legal Interpretations and Get Honest Transparency Act of 2019 (HR 4556), aka the SUNLIGHT Act of 2019, in September 2019. As of the time of this writing, it has 23 co-sponsors.

The SUNLIGHT Act requires the online publication of all OLC opinions currently in effect (while permitting some redactions); an index of all “final” OLC opinions, and creates a private right of action so that the public can sue for access. As the OLC withholds many OLC opinions from disclosure — despite disclosure requests under the Freedom of Information Act — on a number of bases, such as that the opinions are pre-decisional, this legislation provides for a significantly greater accounting of how the executive branch is secretly interpreting the law. Its proactive disclosure language and recourse to the courts likely would change the calculus for OLC on when it publishes opinions, should the legislation move forward.