Government Wins Appeal on FBI Surveillance Practice, DOJ Opinion Disclosure
The U.S. Court of Appeals for the D.C. Circuit ruled against publicizing a document that the FBI has used to justify certain phone surveillance practices, in a decision Friday. The Electronic Frontier Foundation has fought for the release of a Justice Department Office of Legal Counsel (OLC) opinion from January 2010, which the FBI has cited when defending its activities. Attorneys argued EFF v. U.S. Department of Justice, case number 12-5363, in late November.
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The Justice Department Office of Inspector General (OIG) had begun investigating in 2006 how the FBI used national security letters (NSLs) to do phone surveillance. NSLs allow the FBI to obtain call record information from phone companies outside of the traditional legal process. The investigation prompted the creation of the OLC opinion. EFF submitted a Freedom of Information Act request for the document in February 2011. The government argued this opinion should remain secret, and on Friday, the court favored the government, affirming an earlier ruling of the U.S. District Court for the District of Columbia.
"On the record before us, we hold that the OLC Opinion, which was requested by the FBI in response to the OIG’s investigation into its information-gathering techniques, is an ‘advisory opinion, recommendation and deliberation comprising part of a process by which governmental decisions and policies are formulated,’ and is therefore covered by the deliberative process privilege,” Judge Harry Edwards wrote in the D.C. Circuit’s decision Friday (http://bit.ly/1l7dGDK). “We also hold that the FBI did not ‘adopt’ the OLC Opinion and thereby waive the deliberative process privilege.” Edwards said the OIG had cited the OLC opinion and Congress asked about it, but said the FBI never took the opinion’s reasoning as its own. “Finally, because the entire OLC Opinion is exempt from disclosure under the deliberative process privilege, we need not decide whether particular sections were properly withheld as classified, or whether some material is reasonably segregable from the material properly withheld,” he said.
"We are pleased with the decision,” a DOJ spokesman told us.
EFF was “disappointed by today’s decision, which allows the government to continue to secretly reinterpret federal surveillance laws in ways that diverge significantly from the public’s understanding of these laws,” EFF staff attorney Mark Rumold said in a statement. “OLC opinions frequently serve as the last word on the legality of a broad range of controversial government practices -- from warrantless wiretapping, to torture, to drone strikes. By allowing the government to shield these opinions from disclosure, the public’s ability to seek answers and accountability from elected officials is all but blocked."
Edwards referred to instances where courts pressed for disclosure of secret documents but said they don’t apply in this case because “OLC did not have the authority to establish the ‘working law’ of the FBI.” The agency also didn’t adopt the opinion, he said. EFF had argued the opinion constituted “working law” of the FBI and thus should be disclosed. But “even if the OLC Opinion describes the legal parameters of what the FBI is permitted to do, it does not state or determine the FBI’s policy,” Edwards wrote. “The FBI was free to decline to adopt the investigative tactics deemed legally permissible in the OLC Opinion. ... The OLC Opinion does not provide an authoritative statement of the FBI’s policy."
During oral argument, Justice Department attorney Daniel Tenny told the judges that it’s customary for agencies to follow OLC opinions (WID Nov 27 p6). EFF’s Rumold had then argued this made the agency bound, if not formally, to follow the opinion. Electronic Privacy Information Center President Marc Rotenberg had told us then that the Justice Department conceded it views OLC opinions as binding determinations and argued such documents should be disclosed. (jhendel@warren-news.com)