.UNITED STATES DISTRIC'I` COURT
F()R THE DISTRICT OF C()LUMBIA
l CITIZENS FOR REsPoNsIBILITY AND _
ETHICS IN WAs_HINGToN, . t
Plaintiff,
V' ease N@. 1:17-cv-00432-TNM
UNITED STATES_ DEPARTMENT OF'
JUSTICE,
Defendant_.
MEMORANDUM OPINION _
In this suit, the Plaintiff Citizens for Responsibility and Ethics in Washington (“CREW”)
seeks a court order requiring the publication _of “all existing and future . . . formal Written
opinions” issued by the Office of Legal Counsel (“OLC”), Compl. 8-9, a component of the U.S.
Department ofJustice that provides “the opinion of the Attorney General on questions of law”
arising Within the executive branch. 28 U.S.C. § 512. CREW contends that these documents are
subject to the Freedom of Information Act’s “re_ading room” provision, which requires that
` specific categories of records be affirmatively made “available-for public inspection in an
electronic format.” 5 'U.S.C. § 552(a)(2). But this claim fails as a matter of law, since at least
-Some of the documents sought are subject to FOIA E'xemption 5, which protects both the
deliberative process privilege and the attorney-client privilege Elec.- Froniier Found. v. U.S.
Dep 't of Justice, 739 F.Bd'l, 4 (D.C. Cir. 2014) (“EFF”). rThis Well-settled law presents an
obvious and insurmountable barrier to ordering the universal publication of OLC’s formal
Written opinions. Accordingly, l Will dismiss CREW’s complaint for failure to state a claim upon
. Which relief can be granted
I. Background
ln 2013, CREW requested the same relief under the auspices of the Administrative
Procedure. Act (APA), but the District Court dismissed the claim for lack of jurisdiction, and the
_ D.C. Circuit affirmed Cii‘ize_nsfor Responsibili'ly & Erhi'cs in Washington v. U.S. Dep'f of
Justice, 164 F. Supp. 3d 145, 147 (D.D.C. 2016) (“CREWP?); Citizensfor Responsibility &
Ethics in Washingron v. Um`tea' Sl‘ates Dep't of.]ustice, 846 F.3d 1235 (D.C. Cir. 2017) (“CREW
H”). Both decisions concluded that “Plai_ntiff . . . filed its suit under the Wrong statute,” CREWI,
164 F. Supp. 3d at 147, because the'APA provides jurisdiction only When “there is no other
adequate remedy in a court,” 5 U.S.C. § 704, and “precedent establishes that a plaintiff in
CREW's position may bring a FOIA claim to enforce the reading-room provision.” CREWH,
846 F.3d at 1245. l
CREW filed the instant suit in 2017, this time under FOIA.1 The complaint contends that
the DOJ has a “mandatory, non-discretionary duty”_ under 5 U.S.C. § 552(a)(2) “to make
available to the plaintiff on an ongoing basis formal written opinions issued by the DOJ’s Office
of Legal Counsel . . . and indices of such opinions.” Compl. 11 l._ CREW alleges that it has
` “repeatedly and unsuccessfully sought access to OLC opinions through individual FOIA requests
l While the appeal of CREWI Was pending, the plaintiffs attorney in that case (Ms. Anne
Weismann) filed a substantially similar suit under FOIA, on behalf of the Campaign for
Accountability. Campaignfor Accounfability v. U.S. Dep"i‘ of Justice, 2017 WL 4480828 at *5
(D.D.C. 2017). The District Court dismissed that claim in a thorough opinion, presaging the
logic of this one. Id. at *2 (“CfA has not identified an ascertainable set of OLC opinions that
OLC has Withheld from the public and that is also plausibly subject to the FOIA’s reading-room
requirement”). An amended complaint is currently.pending in that case, alleging that five
specific categories of OLC’s opinions must be disclosed under FOIA’s reading room provision
Am. Cornpl., Campaign for Accountability v. U.S. Dep’t of Justice, No. l6-cv-1068 (D.D.C.
. Oct. 27, 2017), ECF. No. 22. Pursuant to briefing submitted by the parties in this case, and after
considering Local Civil Rule 40.5,1 conclude that interests of judicial economy currently weigh
in favor of keeping these cases separate, given the different claims at issue and the fully- briefed
Status of the instant motion to dismiss.
for specific categories of OLC opinions and broader requests,” including a request on \February
3, 2017 “for all OLC formal written opinions and indices of those opinions.” ]d. 1[1] 7, 22. ln
addition, the complaint provides an overview `of OLC’s function and history, alleging that the
-Government has itself described OLC opinions as “controlling advice,” “authoritative,” and
“binding by custom and practice in the executive branch.” Id. W 13-21 (quoting, inter alia, `
l\/lemorandurn from David J. Barron, Acting Assistant Attorney General, to Attorneys of the
Office, Best Practices for OLC Legal Advice_and Written Opinions, (July l6, 2010) available at
https://w\irw.iustice.gov/olc/best-practices-olc-legal-advice-and-written-opinions (last accessed j
February 22, 2018) (‘_‘Best Practices Memo”). As Count I, the_complaint contends that “OLC’s
` formal written opinions, described in the Best Practices Memo,” are subject to mandatory
l publication under 5 U.S.C. § 552(a)(2). Compl. il 27. As Count ll, the complaint claims that
indexes of these opinions must also be made available under 5 U.S.C. § 552(a)(2)(E). Id. at iii
33-34. n
As relief, CREW seeks a declaration that the DOJ has violated FOIA, orders requiring the
D'OJ to “make available to CREW for public inspection and copying on an ongoing basis all
existing and future OLC formal written-opinions” and indices thereof, and an award of attorneys’
fees and costs._ Compl. 8-9. The Governrnent filed a motion to dismiss, contending that the
complaint’s request for all of OLC’S formal, written opinions failed to state a claim under Fed.
n R. Civ. P. l2(b)(6j, and that to the extent CREW “seel