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DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2016cv01068
Date Filed2016-06-08
Date Closed2017-09-29
JudgeJudge Ketanji Brown Jackson
Case DescriptionThe Campaign for Accountability sent a letter to the Department of Justice requesting the agency make its Office of Legal Counsel opinions public under the affirmative disclosure requirement of the FOIA. The agency refused and the Campaign for Accountability filed suit. CFA filed suit as a follow-up to CREW's recently decided litigation in which Judge Amit Mehta suggested that the affirmative disclosure requirements in FOIA could be enforced under FOIA.
Complaint issues: Affirmative disclosure

Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Complaint attachment 4
Opinion/Order [19]
Opinion/Order [26]
FOIA Project Annotation: Judge Ketanji Brown Jackson has limited the relief available in a suit brought by the Campaign for Accountability to force the Justice Department to make publicly available the opinions of the Office of Legal Counsel because, even though Jackson found she had the authority under FOIA to provide some kind of injunctive relief, CfA had failed to state a claim for which Jackson could grant relief. The case, which is a direct follow-on to CREW's earlier litigation concerning the same records, leaves intact the modicum of relief the D.C. Circuit granted earlier this year �" which was so limited to be nearly worthless �" but leaves completely unanswered the level of agencies' obligation to affirmatively disclose information outside a direct FOIA request. To that extent, it is hard to discern any difference between the requirements outlined in Section (a)(2) �" the affirmative disclosure section of FOIA �" and Section (a)(3) �" which requires the disclosure of non-exempt records in response to a FOIA request. Even though FOIA turned 50 this year, FOIA's affirmative disclosure requirements have rarely been litigated and to the extent that the CREW and CfA cases provide some interpretive guidance, they are valuable for that alone. But they represent such a niggardly interpretation of the remedies available to enforce the affirmative disclosure requirements �" which on paper seem quite expansive and open-ended �" that it is clear that the courts do not consider it their job to enforce those provisions. One of the ironies of the current state of judicial interpretation is that congressional staff spent the years leading up to the passage of the 1996 EFOIA amendments trying to nudge agencies towards disclosing more information without the need of filing a FOIA request. Several years before Congress passed the EFOIA amendments, there was serious discussion of using the Paperwork Reduction Act as a vehicle for forcing agencies to disclose more information electronically. Those changes failed to pass, but they certainly informed the policy discussions that ultimately led to the EFOIA amendments, including such ideas as requiring agencies to make relevant Federal Register notices available electronically, as well as the requirement that agencies post frequently requested records online. Because of the ubiquity of electronic records today, it is hard to remember that a primary motivation for the EFOIA amendments was to provide a legal obligation for agencies to disclose electronic records. Both the 2007 OPEN Government Amendments and the 2016 FOIA amendments contained further requirements obligating agencies to disclose electronic information. In comparison to the policies set by Congress, judicial progress has been glacially slow. When CREW originally filed its suit, neither it nor the Department of Justice believed there was any remedy under FOIA at all. As a result, CREW brought its suit under the Administrative Procedure Act, claiming OLC's failure to post its opinions was arbitrary and capricious. It was not until 2016 when Judge Amit Mehta ruled in the case that a court recognized a remedy directly under FOIA. The appeal to the D.C. Circuit primarily challenged Mehta's ruling that FOIA provided a remedy and that the APA was the wrong statute under which to bring a claim. However, while upholding Mehta's conclusion, the D.C. Circuit relied on Kennecott Utah Copper v. Dept of Interior, 88 F.3d 1191 (D.C. Cir. 1996), to find that a cause of action to enforce the affirmative disclosure requirements of Section (a)(2) only existed when the plaintiff had made a FOIA request and, further, that the only remedy was to require the agency to provide the records to the requester. CfA had asked Jackson to order DOJ to make available all OLC opinions because they constituted the working law of the agencies that requested them. The agency argued that courts did not have the jurisdiction to consider such a request. Referring to the D.C. Circuit's decision in CREW v. Dept of Justice, 845 F.3d 1235 (D.C. Cir. 2017), as providing a "well-marked roadmap for analyzing the government argument," Jackson noted that "while a FOIA plaintiff �" like any other plaintiff �" certainly must plead allegations that are specific enough to state a plausible claim for relief, the FOIA presents no jurisdictional impediment to a court entertaining a request for a broad injunction that is not tethered to specific records." She pointed out that "per CREW, this Court cannot order OLC to 'make available for public inspection and copying' all documents that are subject to the reading-room provision, which is one of the remedies that CfA is seeking. However, this Court is authorized to order that OLC produce any documents that it has improperly withheld in violation of the reading room provision to CfA." She observed that "the instant complaint seeks an order requiring OLC produce to CfA any opinions that are subject to the reading-room provision �" a type of relief that the D.C. Circuit has found to be available under the FOIA's remedial provision." She added that "of course, the fact that such relief is available as a categorical matter does not answer the question of whether CfA is correct on the merits when it argues that such relief is warranted." The agency argued that CfA' s claim was not ripe for adjudication because it was too broad. But Jackson explained instead that "what it appears that OLC is actually saying with its 'ripeness' contention is that CfA cannot possibly mean what its complaint suggests �" 'that all of OLC's controlling legal advice documents fall within § 552(a)(2)(A) or (B)' �" and that if the truth lies somewhere short of that �" i.e., that some OLC opinions do �" this Court cannot possibly identify which opinions must be made public 'in the absence of concrete and granular facts about the circumstances under which any given OLC advice document was prepared.' In this way, the government appears to fault CfA for seeking to advance a claim that is unduly categorical, when OLC's (a)(2) publication duties necessarily involve nuanced, contextual assessments of various types of legal opinions that OLC renders and the circumstances under which it does so." Although Jackson found DOJ's ripeness claim did not hit the mark, she agreed with the agency that the breadth of CfA's request that she order the agency to make available all OLC opinions ran afoul of the D.C. Circuit's ruling in EFF v. Dept of Justice, 739 F. 3d 1 (D.C. Cir. 2014), in which the D.C. Circuit found that an OLC opinion prepared for the FBI did not constitute the working law of the FBI because the agency was free to accept or reject its advice. As a result, Jackson noted that "in order to state a claim that OLC is violating the FOIA, CfA's complaint needs to identify an ascertainable set of OLC opinions that plausibly constitute the law or policy of that agency to which the opinion is addressed, and thus far, CfA's complaint fails to do so." Jackson was satisfied that CfA had since identified two subsets of OLC opinions it contended constituted the working law of the agencies for which they were prepared �" (1) opinions that settled inter-agency disputes pursuant to an Executive Order requiring agencies to submit such disputes to the Attorney General, and (2) opinions for independent agencies for which OLC requires an upfront commitment from the agency to abide by its opinion. She allowed CfA to amend its complaint to ask that those subsets of opinions be made available under Section (a)(2).
Issues: Litigation - Jurisdiction - Failure to State a Claim, Affirmative disclosure
Opinion/Order [40]
User-contributed Documents
Docket Events (Hide)
Date FiledDoc #Docket Text

2016-06-081COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 0090-4558969) filed by Anne Campaign for Accountability. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons, # 4 Summons)(Weismann, Anne) (Entered: 06/08/2016)
2016-06-082LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by Anne Campaign for Accountability (Weismann, Anne) (Entered: 06/08/2016)
2016-06-08Case ASSIGNED to Judge Ketanji Brown Jackson. (dr) (Entered: 06/08/2016)
2016-06-083SUMMONS (3) Issued Electronically as to U.S. DEPARTMENT OF JUSTICE (U.S. Attorney and U.S. Attorney General) (Attachment: # 1 Consent Forms)(dr) (Entered: 06/08/2016)
2016-06-134GENERAL ORDER AND GUIDELINES FOR CIVIL CASES BEFORE JUDGE KETANJI BROWN JACKSON. The Court will hold the parties and counsel responsible for following these directives, and parties and counsel should pay particular attention to the Courts instructions for briefing motions. Failure to adhere to this Order may, when appropriate, result the imposition of sanctions and/or sua sponte denial of non-conforming motions. Signed by Judge Ketanji Brown Jackson on 6/13/2016. (lckbj1) (Entered: 06/13/2016)
2016-06-225RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 6-10-2016. (Weismann, Anne) (Entered: 06/22/2016)
2016-06-226RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. DEPARTMENT OF JUSTICE served on 6/22/2016 (Weismann, Anne) Modified party served on 6/23/2016 (znmw). (Entered: 06/22/2016)
2016-06-227RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 6/14/2016. Answer due for ALL FEDERAL DEFENDANTS by 7/14/2016. (Weismann, Anne) Modified dates on 6/23/2016 (znmw). (Entered: 06/22/2016)
2016-06-23Set/Reset Deadlines: Answer due by 7/14/2016, (znmw) (Entered: 06/23/2016)
2016-07-118Joint MOTION for Extension of Time to Respond to Complaint, and for Entry of Briefing Schedule by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Schwei, Daniel) (Entered: 07/11/2016)
2016-07-13MINUTE ORDER granting, for good cause shown, 8 Joint Motion for Extension of Time to Respond to Complaint, and for Entry of Briefing Schedule. Defendant shall file its motion to dismiss on or before 7/21/2016. Plaintiff's reply to the motion to dismiss is due on or before 8/15/2016. Defendant's reply in further support if its motion to dismiss is due on or before 9/1/2016. Signed by Judge Ketanji Brown Jackson on 07/13/2016. (lckbj1) (Entered: 07/13/2016)
2016-07-219MOTION to Dismiss by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Memorandum in Support, # 2 Appendix Index of Exhibits, # 3 Exhibit 1 - Letter from CFA to OLC, # 4 Exhibit 2 - Response Letter from OLC to CFA, # 5 Exhibit 3 - OLC Best Practices Memo, # 6 Text of Proposed Order)(Schwei, Daniel) (Entered: 07/21/2016)
2016-08-0910Unopposed MOTION for Extension of Time to File Response/Reply as to 9 MOTION to Dismiss by CAMPAIGN FOR ACCOUNTABILITY (Attachments: # 1 Text of Proposed Order)(Weismann, Anne) (Entered: 08/09/2016)
2016-08-11MINUTE ORDER granting, for good cause shown, 10 Consent Motion for Extension of Time to File Response and Reply re 9 Motion to Dismiss. Plaintiff's response to 9 is due on or before by 8/22/2016; Defendant's reply re 9 is due on or before 9/8/2016. Signed by Judge Ketanji Brown Jackson on 08/11/2016. (lckbj1) (Entered: 08/11/2016)
2016-08-2211Memorandum in opposition to re 9 MOTION to Dismiss filed by CAMPAIGN FOR ACCOUNTABILITY. (Attachments: # 1 Text of Proposed Order)(Weismann, Anne) (Entered: 08/22/2016)
2016-09-0812REPLY to opposition to motion re 9 MOTION to Dismiss filed by U.S. DEPARTMENT OF JUSTICE. (Schwei, Daniel) (Entered: 09/08/2016)
2016-11-07MINUTE ORDER. In light of Plaintiff's representation that the D.C. Circuit's resolution of Citizens for Responsibility and Ethics in Washington v. U.S. Department of Justice (D.C. Cir. No. 16-5110) might require dismissal of the instant lawsuit, it is hereby ORDERED that this case is STAYED until further Order of this Court. It is FURTHER ORDERED that the parties shall file a joint status report, no later than 30 days after the D.C. Circuit issues its mandate in Citizens for Responsibility and Ethics in Washington v. U.S. Department of Justice (D.C. Cir. No. 16-5110), describing the parties' respective views regarding any impact of that decision on this case. Signed by Judge Ketanji Brown Jackson on November 7, 2016. (lckbj2) (Entered: 11/07/2016)
2017-03-0813NOTICE of Appearance by Scott Allan Hodes on behalf of CAMPAIGN FOR ACCOUNTABILITY (Hodes, Scott) (Entered: 03/08/2017)
2017-03-0814NOTICE OF WITHDRAWAL OF APPEARANCE as to CAMPAIGN FOR ACCOUNTABILITY. Attorney Anne L. Weismann terminated. (Weismann, Anne) (Entered: 03/08/2017)
2017-04-2615Joint STATUS REPORT by U.S. DEPARTMENT OF JUSTICE. (Schwei, Daniel) (Entered: 04/26/2017)
2017-05-02ORDER LIFTING STAY and setting a hearing on Defendant's 9 Motion to Dismiss for July 18, 2017 at 10:30 AM in Courtroom 17 before Judge Ketanji Brown Jackson. Signed by Judge Ketanji Brown Jackson on May 2, 2017. (lckbj2) (Entered: 05/02/2017)
2017-06-2016NOTICE of Appearance by Jameel Jaffer on behalf of All Plaintiffs (Jaffer, Jameel) (Entered: 06/20/2017)
2017-06-2017MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Alex Abdo, :Firm- Knight First Amendment Institute at Columbia University, :Address- 535 West 116th Street, 314 Low Library, New York, NY 10027. Phone No. - 2128549600. Fax No. - 2128547997 Filing fee $ 100, receipt number 0090-4998929. Fee Status: Fee Paid. by CAMPAIGN FOR ACCOUNTABILITY (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Jaffer, Jameel) (Entered: 06/20/2017)
2017-06-20MINUTE ORDER granting 17 Motion for Leave to Appear Pro Hac Vice. It is hereby ORDERED that Alex Abdo is admitted pro hac vice in this matter as counsel for Plaintiff. Signed by Judge Ketanji Brown Jackson on 06/20/2017. (lckbj1) (Entered: 06/20/2017)
2017-07-18Minute Entry for proceedings held before Judge Ketanji Brown Jackson: Motion Hearing held on 7/18/2017, re 9 MOTION to Dismiss. Oral argument heard and motion taken under advisement. (Court Reporter: Barbara DeVico) (gdf) (Entered: 07/18/2017)
2017-09-2918ORDER granting 9 Motion to Dismiss. See attached document for details. Signed by Judge Ketanji Brown Jackson on September 29, 2017. (lckbj2) (Entered: 09/29/2017)
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