Oral Argument Preview: CREW v. DOJ

By David Ryan, Lawfare,  Nov. 28, 2016

On December 5, the D.C. Circuit will hear oral argument in Citizens for Responsibility and Ethics in Washington v. U.S. Department of Justice. The case presents an important question concerning the Freedom of Information Act: whether the Act’s “reading room” provision requires DOJ to prospectively disclose controlling legal opinions issued by the Office of Legal Counsel (OLC), without first receiving a request for specific documents.

The Office of Legal Counsel is the DOJ component responsible for providing authoritative legal advice to the White House and executive branch agencies. As explained in the Office’s 2010 Best Practices Memorandum, OLC frequently resolves novel legal questions that are important to the functioning of the government but unlikely to reach the federal courts in a justiciable controversy. This means that in many cases, OLC’s legal opinions are “effectively [the] final word on the controlling law” within the executive branch. Despite their importance, many OLC opinions are never released to the public, typically because they contain confidential legal advice or other sensitive government information.

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