Knight First Amendment Institute staff attorney Stephanie Krent used a Jan. 31 appearance on The Legal Edition, a video news program, to urge the Biden White House to be more transparent about opinions issued by the Justice Department’s Office of Legal Counsel.
The OLC, which has been referred to as the “Supreme Court” of the executive branch, provides “formal written opinions” to federal agencies on a range of issues, including national security, the lawfulness of immigration policy, and benefits for federal employees. Its formal written opinions constitute final and authoritative pronouncements of the law within the executive branch. Nevertheless, the OLC publishes only a limited subset of these high-impact opinions. And, it fails to even provide a comprehensive index of its opinion titles, added Krent.
“President Biden and his administration could decide to make these opinions more public,” she said on the show. “There's nothing preventing him from telling the OLC to go back through its archives to publish those opinions, and to do so on a forward-looking basis as well.” Krent added that the change in administrations provides an opportunity for “people coming into power to think about what they want their relationship to members of the public to be.”
Her entreaty echoed a recent call by the Knight Institute for the incoming administration to immediately order the OLC to publish its final, written opinions on an ongoing basis, redacting the opinions only as necessary to protect classified information or other material exempt from disclosure under the Freedom of Information Act, or FOIA.
Krent emphasized that the OLC opinions have had a direct and important role in people’s lives, by analyzing whether, for example, government employees may be forced to undergo urine tests, or whether women were entitled to veteran’s benefits. The office has also played a huge role in defining the powers the president may wield in times of crisis, including most famously through its opinions authorizing the CIA and Defense Department to torture prisoners held in the wake of the Sept. 11 terrorist attacks.
The Knight Institute is currently pursuing two major cases involving the OLC, both revolving around FOIA. One, Campaign for Accountability v. DOJ, argues that the OLC’s failure to affirmatively disclose its formal written opinions violates FOIA’s “reading-room provision,” which obligates agencies to proactively disclose opinions or interpretations that have the force or effect of law. In that case, the Institute is currently litigating the narrower question of whether or not the OLC must proactively release opinions that resolve inter-agency disputes. The other Institute case, Francis v. DOJ, seeks disclosure of OLC opinions issued more than 25 years ago. Through that case, the Institute has already uncovered hundreds of previously unreleased OLC opinions.
“The Supreme Court has said over and over that the purpose of the Freedom of Information Act is to create an informed citizenry and to prevent secret law, which is really anathema to democracy,” concluded Krent. “That’s the purpose of transparency, to make clear what the government is doing so that if the public disagrees, it can voice its concern.”
Watch Knight Institute staff attorney Stephanie Krent discuss Office of Legal Counsel transparency on The Legal Edition.