The U.S. Department of Justice can keep secret a legal memo that addresses the authority and legality of the FBI's ability to acquire phone records without legal process, a federal appeals court in Washington ruled today.
A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit, including one of the court's newest members, Sri Srinivasan, said the "deliberative process" legal privilege shields the document from public scrutiny. Read the opinion here.
The appeals court said the privilege—which can protect information that's shared among government officials as agencies develop policy and make decisions—applies to the entire Office of Legal Counsel memo. The D.C. Circuit panel, which included senior judges Harry Edwards and David Sentelle, declined to dig into whether any part of the document can be publicly disclosed.
The challengers, the Electronic Frontier Foundation, sued in 2011 under the Freedom of Information Act to try to obtain a copy of the memo, which addresses the FBI's pursuit of information from telecommunications companies. The FBI in late 2009 sought advice from the Office of Legal Counsel to respond to an internal review of the bureau's effort to collect phone records.
EFF's lawyers, including Mark Rumold, argued the Office of Legal Counsel opinion—issued in January 2010—was the "working law" of the FBI.
"The opinion is a binding statement of DOJ's authoritative interpretation of federal surveillance law, used within the agency and other components of the Executive Branch 'to ensure that any information gathering procedures comply fully with the law,'" EFF said in court papers in the appeal.
The Justice Department's legal team, which included Daniel Tenny, said the memo was not the bureau's "final decision about how, if at all, to alter its investigatory techniques." The government asked the D.C. Circuit to protect the ability of federal agencies to have "confidential, candid discussions and deliberations regarding policy options."
"Mandatory disclosure of OLC’s opinions would chill deliberative discussions within the Executive Branch," Tenny wrote in DOJ's brief. "OLC serves a valuable role in providing confidential legal advice to federal agencies as they develop their policies."
Edwards, writing for the D.C. Circuit panel, said "OLC cannot speak authoritatively on the FBI's policy."
"OLC is not authorized to make decisions about the FBI’s investigative policy, so the OLC Opinion cannot be an authoritative statement of the agency’s policy," Edwards wrote.
The panel said the legal memo can't be the "working law" of the FBI unless the agency "adopted" the guidance OLC provided. "That the OLC Opinion bears these indicia of a binding legal decision does not overcome the fact that OLC does not speak with authority on the FBI’s policy," Edwards wrote.
Rumold said in a statement today that the D.C. Circuit decision "allows the government to continue to secretly reinterpret federal surveillance laws in ways that diverge significantly from the public’s understanding of these laws.”
“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," Rumold said. "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.”