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case number 18-5116.

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Citizens for Responsibility and Ethics in the Washington Appellate versus United States Department of Justice.

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Ms.

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Reisman for the Appellate and Mr. Hishelwood for the Appellate.

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Ms.

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Weisen, good morning.

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Good morning, Your Honors.

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Good morning, and may it please the Court.

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The Office of Legal Counsel is a unique office within the Department of Justice that wields enormous power, conferred by statute on the Attorney General and delegated to OLC.

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OLC exercises that power to tell the executive branch as a whole

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and each agency within the executive branch what the law means, what the law and constitution require, and what they prohibit.

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It does so through a particular form of final, formal written opinion, its best practices memo describes as controlling.

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And the issue here is whether that subset of OLC opinions falls within the FOIA's reading room provision and must be made publicly available

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as final opinions made in the adjudication of cases, statements of policy, and interpretations adopted by the agency.

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Well, you asked for everything, right?

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And you were told you can't have everything.

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To be precise, what we asked for was all of the formal written opinions that are prepared under the best practices memo.

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And that memo describes that as a subset of opinions that OFC prepares.

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And yes, the district court, erroneously we submit, focused singularly on the word all, and said because we were asking for all of those formal OLC opinions, and at least one or more were exempt, we got nothing.

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Okay, but the government's defending the decision on the ground that all includes, pardon me, that even your definition of all, and yet all as you understood it and presented it.

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includes a good deal or at least some material that's privileged.

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Yes, and even if they're correct, Your Honor, that doesn't mean we're entitled to nothing.

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The FOIA case law makes it clear that an agency bears a burden of segregating out exempt from non-exempt material.

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We're all familiar with the request for document procedures that you're referring to, right?

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And you'd expect a law index and all of that.

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Yes.

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But this is a different kettle of fish here in this reading room provision.

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Yes, it's different and one of the most significant differences, Your Honor, is the fact that here, OLC's obligations are defined not by our request, not by our complaint as the court believed, but by the statute itself.

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This court in Crew 1, the predecessor case to this one, made a clear line of distinction

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between the reading room provision 552A2, which it said imposed an affirmative obligation that didn't even require a request to be triggered.

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And the FOIA request provision you're talking about, 552A3, which is a reactive obligation.

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The agency doesn't have an obligation to do anything unless and until it receives a request.

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And then the scope of its obligations is defined by that request.

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But the reading room provision functions very differently.

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And we... So, Ms.

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Guzman, my question is why... I mean, the government says that the Office of the Liberal... Well, it takes positions where there's some...

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ambiguity about what their bottom line positions, but in their brief, they say they have no obligation under the reading room provision.

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They don't need to disclose anything.

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And I think the best, or one way of understanding that is that the office of legal counsel is embedded within the executive branch, and when it talks to other parts of the executive branch, it's really the government talking to itself.

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And unless and until an agency is taking action,

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vis-a-vis the public, that isn't the kind of thing that's covered by the reading room provision.

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So what's your response to that?

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Isn't it really when the agency, when the rubber hits the road, so to speak, and the agency is acting on advice?

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No, we don't believe that the definition of what falls within the scope of the reading room provision is that narrow.

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I think a good example of that, and we cited in our reply brief, I believe, some examples of published OOC opinions.

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Now, they were published belatedly.

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They were not published under the criteria of the statute.

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But one of those opinions had to do with, it was a directive to all agencies within the executive branch that they were not to follow a GAO memo

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that said that federal appropriations could not be used for video news releases.

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An example of a kind of opinion that is subject to the reading room provision.

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It doesn't necessarily impact the public, but it does provide a clear statement that's applied in a particular case.

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And I think the Schleffer case from this court is very instructive.

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It does acknowledge that the line between what's deliberative and

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what's affirmative or non-deliberative can be fuzzy.

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But the test then Judge Ginsburg said was number one, does the opinion in question set a precedent for the case before it, and does it set a future precedent?

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And we submit the best evidence here that OLC creates opinions that fall within the reading room vision is the best practices memo.

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And that's what... Interestingly though, that memo is called best practices, which has a very prudential ring about it.

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If we are operating, we, OLC, if we are operating in the best traditions of

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public transparency and the like.

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We should do these things, not that any law

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so compels.

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But I would submit that the best practices memo goes well beyond that, Your Honor.

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The memo describes particular subsets of opinions that are produced under the practices outlined in that memo.

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For example, the best practices memo talks about the frequent question it faces, which is a concrete ongoing legal dispute between two or more agencies.

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That is not a question

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of just offering legal advice on a policy decision as the government would have you believe here.

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The OLC memo also talks about when the issue, when it concludes that a particular statutory provision is constitutionally invalid, its memo represents the views of the executive branch as a whole.

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In your example of the adjudication within the executive branch,

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I mean, if this were a private entity, you know, General Motors HR says, you know, labor law covers this, or discrimination law covers this, and General Motors, you know, operational division says, no it doesn't, and they take it to the general counsel, in some sense that's an adjudication, but it's internal, and nobody would question that that's subject to an attorney-client privilege, no?

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But here, I mean, the OLC functions in a variety of contexts.

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We readily admit that.

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We readily admit that there are times when all OLC is doing is offering legal advice.

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And the example of that I would cite is this court's opinion in the Electronic Frontier Foundation case.

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Because what the court said there was, OLC was merely offering legal advice on a range of policy issues and decisions that the agency was facing.

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But that's not the only context in which OLC functions.

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And I began by talking about the unique role that OLC occupies, because I think that's critical in understanding the power that it's executing.

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In fact, an early OLC opinion described that power as quasi-judicial.

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Quasi.

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Because it's not an Article III court, Your Honor.

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But they also described the power of the attorney general as not representing the government as a client.

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but acting in a judicial function.

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And we submit many of the ULC opinions are like the opinions of an Article III court.

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They're not advisory opinions.

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They're resolving a specific question that's before the agency for that instance and also for future instances.

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So why, though, even consistent with everything you've just said, was the district judge in error

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in asking for more elaboration along the lines of what you're giving here.

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The district judge said, you've done a pretty broad-brush job here of asking for formal opinions.

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We know that at least one formal opinion in Electronic Frontier Foundation was nonetheless not the kind of product that would be subject to the reading room provision.

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one way of reading his opinion is saying, just tell us a little bit more so that we can be comfortable that there really is anything in the set of things that would be covered by the reading room provision.

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What's wrong with his ruling?

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Because it places a burden of proof on us that the agency properly bore.

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Not burden of proof, burden of pleading, right?

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Well, no, we submit that we met our burden of pleading.

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But he said he didn't.

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He said you didn't.

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Well, in that respect, she was wrong.

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So we're at the pleading stage.

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I just want.

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Yes, yes.

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And I'm sorry if I was imprecise.

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But to be clear, what the court then directed us to do is the kind of pleading burden that a plaintiff in a foiled case does not properly bear.

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As the Second Circuit said in the Brennan Center v. Department of Justice case,

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It's not on the plaintiff to figure out what particular opinions fall within the various subparts of 552A2.

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Here, we met the minimum pleading burden.

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We alleged in our complaint that OOC is subject to the reading room provision.

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We alleged in our complaint that it creates a subset of documents referenced in the best practices memo and that all of those documents have not been made publicly available.

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I think under the minimum pleading standards we more than met them and at that point the burden shifted to the government either to demonstrate that it complied fully with the reading room provision or that in some way it didn't apply to it and that's not a burden that the government met here.

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What discovery would you envision in order to better inform a crew of

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how to better nuance the requests for opinions that might be subject to disclosure into the reading room provision?

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I think there's several lines of inquiry, Your Honor, that we think are appropriate for very targeted discovery, modest discovery.

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I think one critical fact we need to know that's not in the record is how OLC opinions that it issues under the best practices memo are viewed and whether or not they're followed.

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by agencies.

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I mean, that's the kind of factor this court has looked at in the past when trying to figure out the impact, whether something is working on subject to disclosure.

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I think the case law is clear that in order... How would you do that?

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That sounds like a lot of... You referred to modest and targeted discovery.

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Would you go opinion by opinion?

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Would you... Well, no.

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You want to ask OLC how other people view their opinions?

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We want to know if there are instances, for example, when agencies have not followed OLC opinions, have ignored or contradicted OLC opinions.

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Because it's our understanding as a general proposition that OLC establishes what the law means and executive grant agencies follow that.

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In fact, as the best practices memo points out,

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When OLC gets a request for an opinion from an independent agency whose head doesn't serve at the pleasure of the president, OLC asks in advance and in writing for a commitment by that agency to conform its conduct to OLC's opinions.

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Then why do you need to know more about what the agency does when it gets the opinion?

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Well, that's what independent agencies are asked for.

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But we want to make sure, and the case law is clear,

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that one of the factors that courts consider is whether or not opinions are actually followed.

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That sounds like a different lawsuit.

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It sounds like what you need to know is are there opinions that are followed as binding and what's the government's position on whether those are subject to the reading room provision?

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Yes, I would agree.

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I think at the end of the day we're talking about

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pretty targeted discovery.

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But the only other thing I would point out is if it's the government's position that a document or a particular subset of documents is privileged, this court and the Supreme Court have made clear again and again that you need to understand the function that that document played in the administrative process that generated it.

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That was the whole analysis, I submit, that this court went through in the Electronic Frontier Foundation case.

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it looked at the process and said, this is a policy making process.

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OLC doesn't have the authority to make policy decisions.

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But then if you compare it to some of the cases that we've pointed to, where, for example, OLC opined on whether or not the Defense of Marriage Act precluded the Social Security Commissioner

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from giving benefits to a non-biological child of a civil union.

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Or cases this approved court has passed on not involving OLC, but involving very legal advice like tax analysts.

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Exactly.

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Or coastal states.

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Yes.

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And so depending on what the government's defense is, and it's not clear at all from the record, because they've made statements in their brief theorem before the district court about how generally OLC opinion should be treated,

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But they haven't said categorically one thing or another.

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So is it your position that we, as a pleading matter, we and the district court should take as true that the best practices memo describes circumstances on the ground, so to speak, and helps us understand what your complaint is asking for?

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Absolutely.

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And our complaint relies expressly and specifically on the best practices memo.

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All right.

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Thank you.

[00:16:25] Speaker 00:
I want to start right where the court left off, which is focusing on the characteristics of the opinions that Cruz says it is seeking in this complaint, which are opinions that it views as controlling, presidential, and having prospective effect.

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The opinion in Electronic Frontier Foundation from this court, the OLC opinion issued there, this court described as being controlling in the sense that agencies usually follow advice that they receive, precedential, and governing the permissibility of certain tactics the FBI could use in the future should it choose to, although in fact in that case the FBI chose not to use those tactics.

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Given that what crew has requested here mirrors precisely the type of material this court already found in Electronic Frontier Foundation to be privileged and thus not subject to disclosure under the FOIA, the district court quite properly concluded that a complaint seeking all such opinions that share those same characteristics is not plausibly pled.

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But Mr. Hinchelwood, the fact that

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crew may have sought more relief that it's entitled to doesn't make its claim defective.

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It's asking for a response from the government how and whether OLC is complying with its reading room requirements.

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Your Honor, at a minimum we think crew needs to plead plausibly that the documents it is describing or seeking are subject to the requirements of A2 in the first instance, and it has not done that.

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Is it your position that no OLC opinions are subject to the reading room provision?

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That is our general position, Your Honor.

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Well, this court does not have to go that far to resolve this case, as the district court probably recognized.

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A claim for all existing and future OLC opinions in a sort of, frankly, quite extraordinary relief of perspective injunction can be resolved simply by pointing to the fact that we know from Electronic Frontier Foundation that

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at least one such opinion bearing exactly the same characteristics as the opinions that Crew is describing is in fact privileged and for similar reasons is also not a statement of policy or interpretation of law adopted by the agency.

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So there's no need to go as far as that, but certainly we think that's generally true.

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So the position that Mr. Byes or Bees took in the letter to Ms.

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Wiseman that OLC opinions are ordinarily privileged and generally

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deliberative is a less categorical position to the one that you're taking today, that there may, in fact, be some opinions that would be subject to the reading room provision, as I read that.

[00:19:07] Speaker 00:
Your Honor, I'm not aware of any opinions that we believe qualify with that provision, because obviously, if there were such opinions, we would, I think, be conscious of our obligation to disclose them.

[00:19:18] Speaker 00:
The bottom line here is that Cruz still needs to plead something, some facts, to demonstrate that the documents they're seeking have some bearing on 552A2, and they simply have not done that, given the types of documents that they assert that are subject to the requirement.

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Will they complain at paragraph 2, ask for formal written opinions, setting forth controlling legal interpretations,

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and they refer in paragraph 27 to opinions as described in the best practices memorandum.

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So they've sought to home in on the kinds of characteristics that the courts have deemed to be likely to place an opinion under the reading room provision FOIA.

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Yes, Your Honor, but those characteristics are exactly the same characteristics this court addressed in the Electronic Frontier Foundation.

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But the fact that one opinion

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given to one agency was shown to describe latitude for policy rather than a binding interpretation.

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Surely it's not the government's position that every formal opinion from the Office of Legal Counsel is only describing legal guardrails that govern an otherwise a field of policy options.

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That's not the only characteristic.

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What OLC does is it provides pre-decisional legal advice to other agencies when they are making policy and they consult OLC for guidance on questions of law.

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That's the authority that OLC exercises as Delegated Measure General is the ability to give advice on questions of law.

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So yes, in that sense, the agency always needs to take that input and whatever other input and make its own policy judgment.

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And that's why in the electronic frontier foundation, the fact that an opinion was controlling or presidential or more indicia of a binding legal decision didn't change the fact that ultimately it remained a privileged deliberative document.

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If the decision is rendered in response to a commitment by an independent agency to be bounded by it,

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Well, Your Honor, even there, what the independent agency ultimately does is up to the independent agency in the sense that the question it might ask, you know, as in the FBI example, is, you know, we have

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a certain course of action we're considering, we're wondering if certain aspects of it have legal consequences one way or the other, and OLC may or may not bless certain courses of action.

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That doesn't change the fact that it's the agency that ultimately makes the decision, and that the agency would be the one that would have any corresponding obligation to explain its action to the public.

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So we shouldn't rely on that representation to you, that the agency will be bound by your advice.

[00:22:04] Speaker 00:
Well, Your Honor, I just think it's not, again, it's not a relevant

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factor in considering whether or not these documents are covered by A2 or subject delivery process family.

[00:22:15] Speaker 01:
The EFF electronic frontier case talks about secret law, whether the agency, whether OLC is making secret, making law which then remains secret.

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and says an agency is not permitted to develop a body of secret law hidden behind a veil of privilege because it is not designated as formal, binding, or final.

[00:22:41] Speaker 01:
Now, if that's true, then, of course, you already, if it is designated as formal binding or final, it surely can't be hidden behind available privilege.

[00:22:50] Speaker 00:
Well, Your Honor, I think it's, there's two different senses in which the term is being used there, because remember, electronic frontier foundation goes on to say that the opinion, OLC opinion issue in that case, despite being

[00:23:03] Speaker 00:
binding, in addition to a binding legal decision, being presidential, being prospective in nature, being controlling in the sense that agencies follow it, did not make it work in law.

[00:23:13] Speaker 01:
Since the agency had dropped the practice and didn't intend to resume it, it really wasn't binding.

[00:23:20] Speaker 01:
It was just simply running along the parallel line as the agency's own decision.

[00:23:25] Speaker 00:
Well, but the point, Your Honor, is that the agency then had a subsequent decision to make and, in fact, made that decision.

[00:23:30] Speaker 00:
There's always some subsequent action that has to be taken by the relevant agency.

[00:23:34] Speaker 00:
And, in fact, there's no indication there that that would be a statement of policy or interdiction law adopted by the agency.

[00:23:41] Speaker 00:
I think that's the flip side of this.

[00:23:43] Speaker 01:
Suppose an agency, as it does, asks you, can we use appropriated funds to pay foreign doctors?

[00:23:50] Speaker 01:
And you say, no.

[00:23:53] Speaker 01:
Now, is there any doubt in your mind that that will be treated as binding by the executive agency in question?

[00:23:59] Speaker 00:
And even if it is, that doesn't change the fact that it's not subject to A2 or otherwise, you know, doesn't change the fact that it's a deliberative document, as we know from the event.

[00:24:08] Speaker 01:
It's not deliberative.

[00:24:09] Speaker 01:
It's your final decision.

[00:24:11] Speaker 00:
Because, Your Honor, the relevant decision there is the agency then has to either pay or not pay those individuals.

[00:24:18] Speaker 01:
the agency will then make a judgment to pay or not pay as individuals, and it may have obligations of its own to explain its action and to provide reasons that those are separate from... You know, when the Congress says in the statute, or an appropriations writer, no funds here inappropriate may be expended for X or Y. Your office has, I think on numerous occasions, advised agencies that no subterfuge can get around

[00:24:44] Speaker 01:
No, you can't do it on your own time.

[00:24:46] Speaker 01:
You can't do it weekends, et cetera, et cetera.

[00:24:49] Speaker 01:
It's binding.

[00:24:50] Speaker 01:
That statute is binding.

[00:24:51] Speaker 01:
And you're telling them that statute is binding.

[00:24:55] Speaker 01:
And yet you think it's just advisory?

[00:24:57] Speaker 00:
You're on it again because OLC doesn't actually set the policy of any agency.

[00:25:02] Speaker 00:
The fact that they seek legal advice doesn't change the fact that it's ultimately the agency who does not do the relevant action.

[00:25:07] Speaker 04:
But under Exemption 5, this court in tax analysts versus IRS talks about field service advice memoranda issued by the IRS chief counsel, and those are not formally binding.

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on IRS field personnel who request them according to our opinion, they're held in high regard and generally followed.

[00:25:28] Speaker 04:
And we held that they would not be, could not be withheld under Exemption 5.

[00:25:35] Speaker 04:
And it seems like those, the question is, are there no opinions of OLC that have similar characteristics, even though they're by a lawyer in a position in some ways analogous to the general counsel and tax analysts.

[00:25:50] Speaker 04:
not necessarily automatically followed.

[00:25:54] Speaker 00:
Right, so two points about that.

[00:25:55] Speaker 00:
First of all, of course, the IRS, there's no question that it enjoys the authority to set its own policy.

[00:26:00] Speaker 00:
So sort of internal things that go on within the IRS, there's no doubt that unlike an Electronic Frontier Foundation and unlike OLC opinions generally, there's no doubt that the IRS can set its own policy and OLC does not enjoy similar authority.

[00:26:14] Speaker 00:
But you're on a

[00:26:17] Speaker 04:
But it wasn't the policy decisions that were produced pursuant to the general counsel's advice in that case.

[00:26:24] Speaker 04:
It was the advice that was sought, the memoranda.

[00:26:29] Speaker 00:
Right, because that adopted, in fact, the agency's particular policy.

[00:26:32] Speaker 00:
And that's why I say it's important here that an agency that receives advice from OLC may have policy choices to make, may have legal decisions.

[00:26:42] Speaker 00:
The legal information may play a role in the decisions it ultimately makes.

[00:26:46] Speaker 00:
But OLC ultimately does not actually set the policy.

[00:26:49] Speaker 00:
And that's why it's important that those receiving agencies may have their own obligations to

[00:26:56] Speaker 00:
convey information to the public, but that doesn't itself make it the advice that OLC gives in the first instance when the agency is in the process of formulating its policy or deciding what to do.

[00:27:07] Speaker 00:
That doesn't change the fact that that advice is privileged and for the same reasons, also not subject to A2 in the first instance.

[00:27:14] Speaker 00:
And that's why I think it's important to focus more broadly on the claim that's actually pled here, which is that all existing and future OLC opinions that are controlling, precedential,

[00:27:25] Speaker 00:
and perspective must be disclosed when, in fact, we know that those characteristics, focusing on those particular characteristics, isn't what's relevant to the analysis here.

[00:27:35] Speaker 00:
And we know that from electronic frontier foundation.

[00:27:37] Speaker 00:
And in fact, Frouk has pointed to no case in which an OLC advice document of this kind has ever been held to not have been privileged at the time it was created.

[00:27:46] Speaker 00:
Now granted, at times, the privileges may be waived.

[00:27:51] Speaker 00:
Agencies may adopt the reasoning as their own in rare circumstances.

[00:27:55] Speaker 00:
Cruz pointed to nothing indicating that a claim of this breadth is plausible in any way.

[00:28:02] Speaker 04:
I mean, I understand that you're in the position of defending the district court's opinion, but a lot of the reasoning that you're giving us is not in that opinion.

[00:28:09] Speaker 04:
It sounds to me like you are interpreting the statutory phrase, policy or interpretation, and the statutory term adjudication and saying those are not

[00:28:21] Speaker 04:
activities of the OLC, but that's not the ground of the decision that you're defending.

[00:28:27] Speaker 04:
The ground is a pleading that hasn't been pleaded adequately to even put on the government any obligation to respond.

[00:28:37] Speaker 04:
And given that this is an affirmative obligation, a reading room obligation, for a plaintiff to come and plausibly identify some set of opinions that they believe are

[00:28:51] Speaker 04:
sufficiently public regarding or affecting the public's right to be tantamount to policy and or interpretation.

[00:28:59] Speaker 04:
And for the court to just say no, you haven't made your case, it does seem like there's a bit of a burden shift there, no?

[00:29:06] Speaker 00:
Well, at a minimum, a plaintiff has to plead something showing enough factual matter.

[00:29:12] Speaker 04:
I'm sorry, what about the pleadings in the Center for Accountability case?

[00:29:14] Speaker 04:
They've identified four subcategories of

[00:29:18] Speaker 04:
types of decisions that they say are more likely, in their view, to be subject to the reading on probation.

[00:29:25] Speaker 04:
Would that suffice?

[00:29:27] Speaker 00:
Well, obviously, Your Honor, we've opposed, we've moved to dismiss that case as well, but at a minimum, I think that illustrates why, you know, CREW complains that it's not able to sort of even attempt to meet that sort of pleading standard and, you know, obviously, another plaintiff at least has attempted to do so, and the district court gave CREW the opportunity to do so here, and it declined.

[00:29:46] Speaker 00:
Instead, it persisted.

[00:29:47] Speaker 04:
I think the question is whether that's the right field of analysis.

[00:29:50] Speaker 04:
You're sort of saying, we know how we do things.

[00:29:53] Speaker 04:
You plaintiff who haven't had an opportunity to learn how we do things internally have to reach into the black box and figure out, is it an elephant or a parakeet in there before we will even respond and explain how we have either fulfilled our obligations or have no obligations.

[00:30:12] Speaker 00:
Well, two points, Your Honor.

[00:30:14] Speaker 00:
plaintiff to plead sufficient factual matter to show that 552A2 applies in the first instance.

[00:30:19] Speaker 00:
And in fact, Your Honor, it's the nature of a privilege that, you know, some information may not be available to a plaintiff.

[00:30:26] Speaker 00:
You don't generally get to say, I need discovery in order to plead a plausible claim.

[00:30:31] Speaker 00:
We usually do things, you know, the other way around in a pleading standard.

[00:30:39] Speaker 00:
It's not that necessarily there would never be any pleading that would ever suffice to get past a motion to dismiss, but certainly we don't think this plaintiff has sufficiently pledged something.

[00:30:50] Speaker 00:
And obviously we've taken a similar position in some other cases.

[00:30:53] Speaker 01:
What are the criteria by which the office gratuitously decides to publish something?

[00:30:58] Speaker 00:
Well, Your Honor, I believe that... In the matter of grace, of course.

[00:31:00] Speaker 00:
Yes, Your Honor.

[00:31:01] Speaker 00:
Joint appendix pages 21 and 22, I think, outlines the process that the OLC goes through when considering...

[00:31:08] Speaker 00:
Yes, when going through just generally to consider whether or not publication of an opinion is appropriate despite potentially applicable privileges.

[00:31:17] Speaker 00:
And one of the things that takes into consideration is obviously the effect on the deliberate process within the government from disclosure of such documents.

[00:31:23] Speaker 01:
So some things don't affect the deliberate process, apparently, because they're published.

[00:31:27] Speaker 00:
It's not that they aren't deliberative documents when they're created, but there's obviously a process for waiver, and it's certainly the case that

[00:31:36] Speaker 00:
The privilege can be waived just like any other privilege, and in those circumstances, where it's appropriate, will see considered publication.

[00:31:43] Speaker 04:
What about the opinions that the Defense of Marriage Act opinion precluding the non-biological child of a member of a Vermont civil union from qualifying for child's insurance benefits under the Social Security Act?

[00:31:58] Speaker 04:
In that opinion, the Social Security Administration seeks LLC's advice, agrees to be bound by it,

[00:32:04] Speaker 04:
Why doesn't that constitute working law within the meaning of the reading room provision?

[00:32:10] Speaker 00:
There's still a subsequent step there where the Social Security Administration, having received the opinion, has to actually make the relevant decision.

[00:32:17] Speaker 00:
I'm going to issue benefits or not issue benefits.

[00:32:19] Speaker 00:
And at that point, whatever obligations Social Security may have to explain its action or to provide information to the claimant would apply to SSA, but wouldn't affect the privileged character of the legal advice it received

[00:32:34] Speaker 00:
before it made the relevant decision about issuing or not issuing benefits.

[00:32:37] Speaker 04:
Would the Social Security Administration have an obligation to post the OLC's opinion on its pursuant to the reading room obligation?

[00:32:47] Speaker 00:
Your Honor, no, not necessarily.

[00:32:49] Speaker 00:
Whatever obligations Social Security would have would obviously be determined by, you know, it could write its own opinion that lays out its reasons for issuing or not issuing those benefits, and it might have an obligation to disclose that.

[00:33:03] Speaker 00:
You know, there's any number of scenarios that might produce some sort of decision, but that wouldn't necessarily require the disclosure of the privileged advice it received.

[00:33:12] Speaker 00:
It would be a question of sort of how Social Security proceeded with providing the explanation that it gives.

[00:33:19] Speaker 01:
Suppose you were asked in discovery, is there any instance in which an independent agency, having given its agreement to be bound by your decision, disregarded it and acted inconsistently?

[00:33:32] Speaker 01:
Would that be something you could answer?

[00:33:34] Speaker 00:
I don't know the answer to that question.

[00:33:36] Speaker 01:
I know you don't know the answer.

[00:33:38] Speaker 01:
Is it something you could answer?

[00:33:40] Speaker 00:
I would have to ask the office.

[00:33:41] Speaker 00:
I'm not certain if they keep the catalog or know of such instances.

[00:33:48] Speaker 01:
But again, the bottom line is that... If you know of such ones, is there any reason you couldn't answer the question?

[00:33:54] Speaker 00:
I suppose if we knew the answer, we could answer it.

[00:33:58] Speaker 01:
But again, your Honor, the example of Social Security is interesting.

[00:34:01] Speaker 01:
It suggests the possibility that the agency disregards your advice, goes ahead and does whatever, let's say the advice would have, your advice was favored in somebody's claim of entitlement, and the SSA denied it.

[00:34:16] Speaker 01:
So we've heard from OLC, but we think we're on solid ground.

[00:34:19] Speaker 01:
We're gonna deny the claim, and then they're sued.

[00:34:22] Speaker 01:
Now putting aside the question of whether the plaintiff could get access to your advice,

[00:34:26] Speaker 01:
it would be very illuminating if we knew about some instance like that.

[00:34:33] Speaker 00:
Well, Your Honor, I don't know what you mean, illuminating for what?

[00:34:37] Speaker 01:
Because again, whether it's the agency's decision ultimately or whether the agencies are truly bound by your voice.

[00:34:46] Speaker 01:
Even a single example in which they just simply disregard it would be helpful.

[00:34:51] Speaker 00:
But Your Honor, the reality is that

[00:34:53] Speaker 00:
As we know from Electronic Frontier Foundation, whether or not something is controlling in that sense or binding in that sense isn't actually determinative.

[00:35:01] Speaker 00:
The question is whether the agency is making its own sort of relevant

[00:35:08] Speaker 00:
whether the agency is receiving that sort of pre-decisional legal advice and that's, you know, and then making its own policy decision.

[00:35:13] Speaker 00:
And now, you know, they may receive advice that only one course of action is sort of legally appropriate.

[00:35:18] Speaker 00:
That doesn't change the fact that what they've sought is pre-decisional legal advice to make their own policy calls.

[00:35:23] Speaker 01:
So what should we make of this passage that I read to you earlier in EFF, that a body of secret law cannot be shielded by a veil of privilege?

[00:35:36] Speaker 00:
Yeah, I mean, I think that generally states the goals of the reading room provision.

[00:35:41] Speaker 00:
And all that's been asked of the plaintiff here is that they plausibly plead that the documents they're seeking are subject to the reading room provision.

[00:35:47] Speaker 00:
And the fact that they can't point to any characteristics of the opinions they're seeking that are distinct from the opinion issue of Electronic Frontier Foundation underscores why they haven't been able to meet that burden here and decline the opportunity to do so when the district were given leave to amend.

[00:36:01] Speaker 01:
A few months ago, it's that we don't make any secret law because we don't make any law.

[00:36:05] Speaker 00:
Again, I think that, as sort of a broad-brush statement, is we do generally take the position that the documents that OLC creates are pre-decisional legal advice and not determinative of the policy of any agency.

[00:36:17] Speaker 00:
Those agencies make their own decisions after receiving OLC's advice, to the extent they seek it.

[00:36:22] Speaker 01:
But, again, you don't necessarily have to... So, I mean, isn't this a little, at least intention, perhaps,

[00:36:30] Speaker 01:
in contradiction to things that both David Barron and Carl Thompson have said about the office when they led the office.

[00:36:38] Speaker 01:
Yeah, I'm not sure which specific statements you're referring to, but... About the authority of the agency within the executive branch.

[00:36:46] Speaker 01:
Your Honor, again, the fact that... The plaintiff's quoted in the blue brief.

[00:36:49] Speaker 00:
Well, sure, Your Honor, but again, the fact that the OLC advice is, you know,

[00:36:56] Speaker 00:
controlling, as this court said in the EFF, in the sense that agencies generally follow the advice they receive, is still not determinative.

[00:37:02] Speaker 00:
And it still wouldn't change the fact that the complaint here, which seeks extraordinarily broad relief and extraordinarily, on the basis of extraordinary broad allegations, which mirror precisely those that issue an electronic frontier foundation.

[00:37:16] Speaker 04:
But generally, I mean, that really seems to me like a bit of a red herring, to the extent that you're saying,

[00:37:22] Speaker 04:
no matter how specific you are, at the end of the day, it's a null set.

[00:37:29] Speaker 04:
Doesn't that seem a little odd that you would take that litigating position?

[00:37:34] Speaker 04:
What about for a deliberative process?

[00:37:36] Speaker 04:
Doesn't that expire after 25 years?

[00:37:38] Speaker 00:
Under the FOIA, yes, we're not able to assert that for 25 years.

[00:37:41] Speaker 04:
Does OLC have an obligation to publish advice that it's given that's

[00:37:47] Speaker 04:
25 or more years old?

[00:37:48] Speaker 00:
No, Your Honor.

[00:37:49] Speaker 00:
And again, because we think for many of the same reasons that these documents are protected by Deliberative Process Privilege, they're also not A2 documents.

[00:37:56] Speaker 00:
I mean, the fact is, it's not a statement of policy or interpretation adopted by the agency because it's pre-decisional advice that's given to another agency about what to do.

[00:38:05] Speaker 04:
But isn't it adopted by the agency?

[00:38:06] Speaker 04:
Is the Department of Justice not an agency under that provision?

[00:38:10] Speaker 00:
But it's not, again, sort of focusing on the same way that it's orders or adjudications that sort of affect the public, as you were pointing out earlier.

[00:38:17] Speaker 00:
The actions that actually affect the public are the actions of the agency that receives the advice.

[00:38:24] Speaker 00:
And so to the extent that someone wanted to file, for example, an E3 claim that asked for OLC documents of a certain age or attempted to disclose

[00:38:37] Speaker 00:
asked OLC to review and disclose.

[00:38:40] Speaker 00:
OLC would certainly process a request of that nature, assuming it was reasonably defining the documents at issue and not unduly burdensome.

[00:38:47] Speaker 00:
And that's part of what's important to remember here is that this claim is sort of proceeding in a very unusual way because we're under A2 instead of A3.

[00:38:57] Speaker 00:
If a plaintiff brought an A3 claim, we wouldn't be having this same discussion.

[00:39:01] Speaker 00:
We're only talking about this pleading standard and whether they've sufficiently

[00:39:04] Speaker 00:
you know, plausibly allege that these documents are subject to A2 because CREW has insisted on proceeding under A2 rather than filing a request under A3.

[00:39:13] Speaker 01:
In which case your response would be what?

[00:39:17] Speaker 00:
Well, in which case we would have obligations to, you know, assuming again that the request reason to describe the document saw it and wasn't of really importance and met the sort of threshold requirements for an A3 request, we would have obligations to, you know, respond to the request in the way we respond to all other requests by asserting relevant privileges and...

[00:39:35] Speaker 01:
given the breadth of the request, even as limited to final binding and so on.

[00:39:43] Speaker 01:
I don't think you would be immediately responding with a Vaughn index.

[00:39:48] Speaker 00:
I wouldn't want to speculate exactly how that would go, but Your Honor, the point is that part of the reason we're having this sort of, I think, somewhat unusual conversation in the FOIA context is that we're under a provision that is itself somewhat unusual, and that where

[00:40:04] Speaker 00:
The plaintiff at a minimum we think needs to demonstrate or provide some factual basis to believe that the documents it's seeking fall within 552A2.

[00:40:13] Speaker 04:
Why is it not your obligation as an agency presumptively covered by the FOIA to simply litigate the issue that you've been arguing today, which is we have no documents that fall within the definitions adjudication or

[00:40:34] Speaker 00:
policy or interpretation and have a court pass on that question.

[00:40:50] Speaker 00:
and until they have met that threshold burden, there's no obligation to respond in that particular way.

[00:40:56] Speaker 04:
It's curious to me that the government has not taken the position, yes, we have a reading room obligation, and we have a website, and we publish things there, and the index of the things that we've listed there is our index, and we're working hard on that, and we'll keep you posted.

[00:41:16] Speaker 04:
That's not the government's position.

[00:41:18] Speaker 00:
Well, I mean, Your Honor, OLC does have a page, a reading room page, on which it includes opinions that it has previously released publicly.

[00:41:27] Speaker 00:
But that's not because it believes those opinions are subject to A2 or because it believes deliberate process privilege doesn't apply to those opinions when they're 25 or fewer years old.

[00:41:37] Speaker 00:
So the fact that it makes many of those opinions public doesn't change its underlying obligations.

[00:41:43] Speaker 00:
It just means that OLC goes above and beyond those obligations.

[00:41:47] Speaker 00:
disclosing information that has, frankly, no obligation to disclose in those instances.

[00:41:54] Speaker 00:
Any further questions?

[00:41:58] Speaker 03:
Does counsel have any time?

[00:42:01] Speaker 03:
All right, why don't you take two minutes.

[00:42:03] Speaker 03:
Thank you.

[00:42:04] Speaker 03:
I want to start with the pleading standard.

[00:42:06] Speaker 03:
We very much dispute that we didn't meet.

[00:42:09] Speaker 03:
What is

[00:42:10] Speaker 03:
as this Court knows, a fairly low bar, pleading bar in establishing a claim under the reading room provision.

[00:42:16] Speaker 03:
Our complaint expressly references the best practices memo.

[00:42:20] Speaker 03:
That memo sets out characteristics of opinions, of a subset of opinions that OSB produces that we submit, make those opinions subject to the reading room requirement

[00:42:33] Speaker 03:
And that, we submit, is all that we were required to do.

[00:42:37] Speaker 03:
I'd also like to speak to the characterization of OLC's opinions as only providing legal advice that then require the agency to take another step.

[00:42:46] Speaker 03:
And I think the best example that refutes that is one we cited.

[00:42:51] Speaker 03:
OLC issued an opinion on the right of postal service employees to receive credit for retirement benefits purposes

[00:42:59] Speaker 03:
for periods of time in which the Postal Service had not made the required employer contributions.

[00:43:06] Speaker 03:
And the OLC opinion states, and I quote, OMB may not address the Postal Service's failure to make statutorily required contributions by denying its employees accrued service credit.

[00:43:20] Speaker 03:
May not.

[00:43:22] Speaker 03:
There is nothing advisory about that opinion.

[00:43:25] Speaker 03:
There is nothing in that opinion that suggests it's merely offering legal advice.

[00:43:30] Speaker 01:
It doesn't say that.

[00:43:33] Speaker 03:
It simply says OMB may not.

[00:43:36] Speaker 03:
And we think that demonstrates that there is a category of opinions and that's the category we are seeking to have the agency produce under the reading room provision.

[00:43:50] Speaker 03:
And I also very much dispute counsel's characterization of the EFF decision as describing the entire universe, essentially, of opinions that OLC produces.

[00:44:02] Speaker 03:
In fact, I think what's noteworthy, and Judge Ginsburg, you talked about this in part, what's noteworthy about that opinion is the court goes out of its way to go through and recite a litany of cases dealing with working law

[00:44:17] Speaker 03:
and dealing with nonprivileged documents.

[00:44:21] Speaker 03:
And it does so in a very approving fashion.

[00:44:24] Speaker 03:
And the common theme is described by the EFF Court in those decisions.

[00:44:30] Speaker 03:
What makes them work in law is the fact that they supply the reasons for the agency policy actually adopted.

[00:44:38] Speaker 03:
Whereas in the decision in the OLC opinion before the EFF Court, as you've noted,

[00:44:45] Speaker 03:
The FBI had abandoned the practice.

[00:44:48] Speaker 03:
It had no intent to pursue it in the future.

[00:44:51] Speaker 03:
It was examining policy options in the context of responding to an inspector general report.

[00:44:58] Speaker 03:
And I think that's very different than the context we've cited to, both in published OLC opinions and the language that the best practices memo uses to describe those opinions.

[00:45:09] Speaker 01:
Why have you found it desirable to proceed under a reading room provision rather than demanding particular documents?

[00:45:18] Speaker 03:
I don't think it's a matter of desirable.

[00:45:20] Speaker 03:
I think that the reading room provision imposes, as this court recognized in Crew 1,

[00:45:26] Speaker 03:
an affirmative obligation on the agency that is completely independent of any specific request by any specific individual or group.

[00:45:35] Speaker 03:
And we are simply seeking to have the OLC comply with that obligation.

[00:45:42] Speaker 03:
I think it's telling, had we in fact

[00:45:46] Speaker 03:
filed a request under the A3, the request provision, for all OLC opinions that were produced pursuant to the best practices memo, OLC could not have responded because we were asking for all and some were not, you know, were privileged that we get nothing.

[00:46:05] Speaker 03:
I mean FOIA requesters frequently ask for all documents on a particular subject and that's never been the basis for an agency to respond

[00:46:16] Speaker 03:
is an all or nothing prospect.

[00:46:18] Speaker 01:
Well, it sounds like you're telling me that you think it would have been preferable to proceed under A3.

[00:46:24] Speaker 03:
I don't think it would have been preferable.

[00:46:25] Speaker 03:
I think we're trying to- More successful.

[00:46:28] Speaker 03:
Well, ironically, in this case, it might have given the government's position here and given what the district court found, which was that by using the word all, if we didn't get all, we got nothing.

[00:46:40] Speaker 03:
And that, we submit, was one of the fundamental errors that the district court committed.

[00:46:45] Speaker 03:
For all those reasons and the ones that are brief, we respectfully ask this court to reverse this decision and remand a call out.

[00:46:52] Speaker 03:
Thank you.

[00:46:54] Speaker 02:
Stand please.