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January 3, 2014
  Electronic Frontier Foundation v. United States Department of Justice
Headline: D.C. Circuit denies FOIA request for OLC memorandum regarding FBI telephone records requests.

Area of Law: Freedom of Information Act

Issue Presented: Whether FOIA's "deliberative process privilege" protects a memorandum from the Office of Legal Counsel regarding the FBI's authority to request phone records from service providers.

Brief Summary: In 2007, the Office of the Inspector General (OIG) conducted an audit of the FBI's use of national security letters to subpoena telephone and financial records that the Bureau certifies are connected to an authorized national security investigation. During the course of that audit, and subsequent congressional hearings, it came to light that the Office of Legal Counsel had prepared a memorandum (the OLC Opinion) advising the FBI that, under certain circumstances, it had authority from a redacted source to obtain such records from the service providers on a voluntary basis, without a national security letter or other compulsory legal process. OIG concluded that "the potential use of [that authority] by the FBI ... creates a significant gap in FBI accountability and oversight that should be examined closely," although it also acknowledged that "[t]he FBI has stated that it does not intend to rely on [such authority]."

On February 15, 2011, the Electronic Frontier Foundation (EFF) submitted a FOIA request for the OLC Opinion. The Department of Justice denied the request, and EFF sought to compel disclosure in the U.S. District Court for the District of Columbia. The district court held that the OLC Opinion was exempt from disclosure in its entirety because it was covered by the "deliberative process privilege" of Exemption 5, which covers "documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." The district court also concluded that portions of the OLC Opinion were exempt from disclosure under Exemption 1 because they were "specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy" and "[were] in fact properly classified pursuant to such Executive order." EFF appealed, contesting the finding that the OLC Opinion was covered by the deliberative process privilege and arguing that the FBI had waived the privilege by relying on the Opinion in its dealings with Congress and the OIG. EFF also claimed that the district court had erred in failing to require the FBI to specify which portions of the Opinion were disclosable and which were exempt from disclosure under Exemption 1 and in failing to consider whether any disclosable information was segregable from the Opinion's other content.

The United States Court of Appeals for the District of Columbia Circuit affirmed the district court's decision, holding that the OLC Opinion was covered by the deliberative process privilege in its entirety. The court emphasized that the privilege applied to shield the process by which an agency works out is policy and determines what its law will be, while requiring disclosure of the end result of that process, the agency's "working law." The court found that the OLC Opinion constituted advice offered by OLC for consideration by officials of the FBI, exactly the sort of "give and take of the consultative process" that the privilege was designed to protect, rather than an authoritative statement on the FBI's investigative policy. The court further found that the privilege had not been waived by invoking or relying on the contents of OLC Opinion. Although it had been mentioned in the OIG audit report, and the FBI's General Counsel had responded to questions about it, the court found that this did not amount to an adoption of the Opinion by the FBI. Finally, the court concluded that it was unnecessary to address the segregability question.

For the full text of this opinion, please visit
http://www.cadc.uscourts.gov/i...le/12-5363-1473387.pdf.

Panel (if known): Srinivasan, Edwards, and Sentelle

Argument Date (if known): November 26, 2013

Date of Issued Opinion: January 3, 2014

Docket Number: 12-5363

Decided: Affirmed

Case Alert Author: Ripple L. Weistling

Counsel (if known): Mark Rumold, David L. Sobel for appellant. David Tenney, Stuart F. Delery, Ronald C. Machen, Jr., and Michael S. Raab for appellee.

Author of Opinion: Edwards

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 01/03/2014 01:47 PM     DC Circuit  

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