Campaign for Accountability v. U.S. Dep't of Justice

278 F.Supp.3d 303

CAMPAIGN FOR ACCOUNTABILITY, Plaintiff,

v.U.S. DEPARTMENT OF JUSTICE, Defendant.

No. 16–cv–1068 (KBJ)

United States District Court, District of Columbia.

Signed October 6, 2017

Alexander Abraham Abdo, Pro Hac Vice, Jameel Jaffer, Knight First Amendment Institute at Columbia University, New York, NY, Scott Allan Hodes, Scott A. Hodes, Attorney at Law, Anne L. Weismann, Citizens for Responsibility and Ethics in Washington, Washington, DC, for Plaintiff.

Daniel Stephen Garrett Schwei, U.S. Department of Justice, Civil Division, Federal Programs Branch, Washington, DC, for Defendant.

MEMORANDUM OPINION

KETANJI BROWN JACKSON, United States District Judge

This lawsuit arises under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, but it is not the familiar sort of FOIA lawsuit that challenges an agency's failure to produce records in response to a specific request from the plaintiff. Rather, plaintiff Campaign for Accountability ("CfA") seeks an order requiring the Department of Justice's Office of Legal Counsel ("OLC") to comply with its obligation to make certain records available affirmatively , without the need for a prior request, pursuant to the FOIA's seldom-litigated ‘reading-room’ provision, 5 U.S.C. § 552(a)(2). CfA alleges that the legal opinions that OLC provides on behalf of the Attorney General to various officials in the Executive Branch are subject to the reading-room provision either because OLC's legal advice documents are "final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases[,]" id. § 552(a)(2)(A), or because they qualify as "statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register[,]" id. § 552(a)(2)(B). (See Compl., ECF No. 1, ¶ 31.) OLC has already made many of its opinions (more than 1,300 of them) available to the public on its website; however, in the instant lawsuit, CfA seeks an order requiring OLC to make available all of its opinions that have precedential effect within the Executive Branch, as well as an index of those opinions. (See id. ¶ 35.)

Before this Court at present is the government's motion to dismiss CfA's complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (See Mem. in Supp. of Def.'s Mot. to Dismiss ("Mot."), ECF No. 9–1.) In its motion, the government argues that this Court lacks subject matter jurisdiction to entertain CfA's complaint because it seeks a type of relief that is beyond the scope of what the FOIA's remedial provision authorizes. (See id. at 19–23 (discussing 5 U.S.C. § 552(a)(4)(B) ).)¹ The government also takes various doctrinal tacks under both Rule 12(b)(1) and Rule 12(b)(6) to press the argument that CfA's claim is too broad and abstract for judicial resolution. Specifically, the government asserts that the FOIA's remedial provision does not authorize broad injunctions that are not tethered to specific documents (see id. at 19–21); that FOIA claims that are not presented in a concrete factual setting are constitutionally unripe (see id. at 23–27); and that CfA's allegations fail to state a claim upon which relief can be granted, because OLC opinions are not plausibly subject to the reading-room requirement, at least at the level of generality that CfA's complaint identifies them (see id. at 29–31). In this regard, the government's motion—and indeed, CfA's complaint itself—raises novel questions regarding how a plaintiff who seeks to enforce the FOIA's reading-room provision must present its claims.

On September 29, 2017, this Court issued an order that GRANTED the government's motion to dismiss, and DISMISSED CfA's complaint. (See ECF No. 18.) The instant Memorandum Opinion explains the reasons for that order. In short, having considered the parties' arguments, and in light of the D.C. Circuit's recent decision in Citizens for Responsibility and Ethics in Washington v. Department of Justice (CREW ), 846 F.3d 1235 (D.C. Cir. 2017), this Court concludes that it does have subject matter jurisdiction to award the type of broad, prospective injunction that CfA seeks, even if the Court can only require that the requested records be produced to CfA rather than made available to the public. However, in this Court's view, CfA has not identified an ascertainable set of OLC opinions that OLC has withheld from the public and that is also plausibly subject to the FOIA's reading-room requirement. Accordingly, and for the reasons explained fully below, the Court agrees with the government that CfA's complaint must be dismissed because it fails to state a claim upon which relief can be granted. The Court will permit CfA to file an amended complaint, if it chooses to do so, as provided in the Order that accompanies this Memorandum Opinion.

I. BACKGROUND

Because this case presents the question of whether OLC must make its legal opinions available for public inspection pursuant to the FOIA's reading-room provision, the statutory framework that informs the Court's analysis of that provision appears below. Following that recitation is a description of the role of OLC opinions within the Executive Branch, and an account of the various efforts—both by Plaintiff and by another similar organization, Citizens for Responsibility and Ethics in Washington ("CREW")—to compel OLC to make its opinions available to the public.

A. Statutory Framework

Under the FOIA, this Court "has jurisdiction to enjoin [an] agency from withholding agency records and to order the production of records improperly withheld from the complainant." 5 U.S.C. § 552(a)(4)(B). A FOIA complaint that seeks judicial review of an agency's withholding of records can allege that the government's withholding violates any one of the statute's three disclosure requirements— sections 552(a)(1), (a)(2), or (a)(3). See Kennecott Utah Copper Corp. v. U.S. Dep't of the Interior , 88 F.3d 1191, 1202 (D.C. Cir. 1996). The vast majority of FOIA lawsuits arise under section 552(a)(3)(A), which mandates that "each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person." 5 U.S.C. § 552(a)(3). The D.C. Circuit has referred to (a)(3) as the FOIA's "reactive" disclosure provision, because it requires an agency to produce records only "in response to specific requests." CREW , 846 F.3d at 1240.

A FOIA lawsuit may also accuse an agency of violating either one of the statute's "two distinct affirmative disclosure obligations[,]" id. , which, unlike

section 552(a)(3), require agencies to act proactively with respect to the publication of certain types of records and information; i.e. , the agency must disclose the records without waiting for a request. One of these two affirmative disclosure provisions, section 552(a)(1), pertains to information that agencies must "publish in the Federal Register for the guidance of the public[.]" 5 U.S.C. § 552(a)(1). The matters that an agency must publish in the Federal Register include "statements of the general course and method by which [an agency's] functions are channeled and determined," "rules of procedure," and "substantive rules of general applicability[,]" among others. Id. § 552(a)(1)(B)–(D).

This lawsuit arises under the FOIA's other affirmative disclosure requirement, which appears in section 552(a)(2) —the "so-called ‘reading room’ provision." Tax Analysts v. IRS , 117 F.3d 607, 609 (D.C. Cir. 1997).² Section 552(a)(2) identifies certain items than each agency must "make available for public inspection in an electronic format[.]" Id. § 552(a)(2). The categories of items that agencies must publicize pursuant to the reading-room provision include "final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases[,]" and "those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register[.]" Id. § 552(a)(2)(A)–(B). Section 552(a)(2) also contains an indexing requirement, which dictates that "[e]ach agency shall ... maintain and make available for public inspection in electronic format current indexes providing identifying information for the public as to any matter" covered by the other provisions of the reading-room requirement. Id. § 552(a)(2)(E).

The FOIA's reading-room provision "represents an affirmative congressional purpose to require disclosure of documents which have the force and effect of law." NLRB v. Sears, Roebuck & Co. , 421 U.S. 132, 153, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975) (internal quotation marks and citation omitted). The types of documents that section 552(a)(2) requires agencies to publicize and index—"final opinions ... made in the adjudication of cases[,]" "statements of policy and interpretations which have been adopted by the agency[,]" and "instructions to staff that affect a member of the public[,]" 5 U.S.C. § 552(a)(2)(A)–(C) —collectively "indicate that the primary objective is the elimination of ‘secret law’ "; that is, these requirements prevent an agency from subjecting members of the public to a rule that the agency has not publicly announced. U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press , 489 U.S. 749, 772 n.20, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (quoting Frank H. Easterbrook, Privacy and the Optimal Extent of Disclosure Under the Freedom of Information Act , 9 J. Legal Studies 775, 777 (1980)); see also id. ("Under the FOIA an agency must disclose its rules governing relationships with private parties and its demands on private conduct[.]"). In this same vein, any document to which section 552(a)(2) pertains "may be relied on, used, or cited as precedent by an agency against a party other than an agency only if" the agency has indexed and publicized it...