D.C. Circuit: OLC Opinion on Exigent Letters Exempted from FOIA

Today, a three-judge panel of the D.C. Circuit rejected an important Freedom of Information Act ("FOIA") lawsuit brought by the Electronic Frontier Foundation.  The group had sought disclosure of a 2010 Office of Legal Counsel opinion dealing with the FBI's use of national security letters in the wake of 9/11. The OLC opinion was prompted by an Office of Inspector General investigation into National Security Letters ("NSLs") and so called "exigent letters"---NSLs issued to telephone companies without the mandatory FBI certification that the records sought were part of an authorized national security investigation. The court, in the person of Senior Circuit Judge Harry Edwards, affirmed the District Court's rejection of the suit, concluding both that OLC did not have authority to establish the "working law" of the FBI, and instead that the opinion was relegated to the status of advice for consideration.  Since the FBI did not adopt the opinion's arguments in the end, as then-FBI General Counsel Valerie Caproni attested to in a congressional hearing, the opinion did not bind the agency.  Consequently, the disclosure-blocking "deliberative process privilege" governed the case, in the appeals court's view; the OLC opinion related only to the "advisability" of the FBI's policy, but was not itself statement of that policy.  And that supports the privilege's application---and the suit's denial. The D.C. Circuit did not address the district court's ruling that the national security exemption, Exemption 1, applies to certain portions of the opinion, since the entire document was exempt under the deliberative process privilege.