Sunday, January 5, 2014

D.C. Circuit Rejects FOIA Appeal for OLC Opinion on National Security Letters

The D.C. Circuit on Friday ruled that an opinion of the Office of Legal Counsel that provided a legal justification for the FBI to use "national security letters" to subpoena telephone and financial records that it certifies are connected to an authorized national security investigation is exempt from public disclosure under the FOIA.  The ruling in Electronic Frontier Foundation v. U.S. DOJ means that the OLC opinion will remain classified.

The court held that the OLC opinion met the deliberative process privilege because it was requested by the FBI in response to an Office of Inspector General Investigation into the Bureau's use of national security letters:

On the record before us, we hold that the OLC Opinion, which was requested by the FBI in response to the OIG's investigation into its information-gathering techniques, is an "advisory opinion[], recommendation[] and deliberation[] comprising part of a process by which governmental decisions and policies are formulated," and is therefore covered by the deliberative process privilege.  We also hold that the FBI did not "adopt" the OLC Opinion and thereby waive the deliberative process privilege.  The OIG mentioned the OLC Opinion in its report, and a congressional committee inquired about the OLC Opinion, but the FBI never itself adopted the OLC Opinion's reasoning as its own.  Finally, because the entire OLC Opinion is exempt from disclosure under the deliberative process privilege, we need not decide whether particular sections were properly withheld as classified, or whether some material is reasonably segregable from the material properly withheld.

Op. at 3.

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