Oversight Leaders Seek to Shine Light on DOJ Office of Legal Counsel

Published: Mar 14, 2016

WASHINGTON, D.C. – Today, kicking off Sunshine Week, House Oversight and Government Reform Committee Chairman Jason Chaffetz (R-UT) and Ranking Member Elijah Cummings (D-MD) sent a letter to the Department of Justice (DOJ) requesting documents to better understand the Office of Legal Counsel’s (OLC) opinion-making process. OLC is responsible for authoring opinions that provide legal direction to executive branch agencies. Due to increasing FOIA requests, OLC is providing legal counsel more frequently through informal advice than through written opinions. This creates less transparency and presents difficulties in maintaining proper federal records.
Excerpts from the letter:

“The Office of Legal Counsel (OLC) provides ‘authoritative legal advice to the President and all the Executive Branch agencies.’ In this role, OLC has historically authored numerous opinions that provide ‘controlling legal advice’ to executive branch agencies. At times, OLC is ‘asked to opine on issues of first impression that are unlikely to be resolved by the courts – a circumstance in which OLC’s advice may effectively be the final word on the controlling law.’

“The transparency of OLC opinions has been a topic of public and Congressional interest. Notably, a recent news report indicates that Central Intelligence Agency General Counsel Caroline Krass stated at an event that more frequent requests under the Freedom of Information Act (FOIA) and concerns about opinions being made public ‘has served as a deterrent to some in terms of coming to the OLC to ask for an opinion.'”

Full text of the letter can be viewed here or below.

March 14, 2016

Dear Madam Attorney General:

The Office of Legal Counsel (OLC) provides “authoritative legal advice to the President and all the Executive Branch agencies.”[1] In this role, OLC has historically authored numerous opinions that provide “controlling legal advice” to executive branch agencies.[2] At times, OLC is “asked to opine on issues of first impression that are unlikely to be resolved by the courts – a circumstance in which OLC’s advice may effectively be the final word on the controlling law.”[3]

The transparency of OLC opinions has been a topic of public and Congressional interest. Notably, a recent news report indicates that Central Intelligence Agency General Counsel Caroline Krass stated at an event that more frequent requests under the Freedom of Information Act (FOIA) and concerns about opinions being made public “has served as a deterrent to some in terms of coming to the OLC to ask for an opinion.”[4] Ms. Krass served for a nearly a decade in OLC, including briefly as the Acting Assistant Attorney General heading the office.

At the same event, the current head of OLC, Principal Deputy Assistant Attorney General Karl Remón Thompson, added that OLC also provides opinions by phone or email. He stated:

There are a lot of different ways in which OLC gives advice. A very small piece of that is writing formal opinions. The vast majority of our advice is provided informally — is delivered orally or in emails. That is still authoritative. It is still binding by custom and practice in the executive branch. It’s the official view of the office. People are supposed to and do follow it.[5]

To help the Committee better understand OLC’s processes and the work that it performs, please provide the following as soon as possible, but no later than March 28, 2016:

1. Documents sufficient to show how many full-time employees work in OLC, and of those, how many are attorneys.

2. Documents sufficient to show how many requests for formal opinions OLC has received each year from 2005 to 2015.

3. Documents sufficient to show how many formal opinions OLC has issued each year from 2005 to 2015, including the number which were classified and the number which were unclassified.

4. Documents sufficient to show how many regulations requiring the Attorney General’s approval OLC reviewed each year from 2005 to 2015, and of those, how many each year resulted in the issuance of a formal opinion.

5. Documents sufficient to show how many formal OLC opinions have been released publicly each year from 2005 to 2015.

6. Documents sufficient to show how many formal OLC opinions have been shared with Congress each year from 2005 to 2015, other than those shared publicly.

7. Documents sufficient to show how many FOIA requests OLC received each year from 2005 to 2015 requesting OLC opinions.

8. Documents sufficient to show how many formal OLC opinions were released under FOIA each year from 2005 to 2015.

9. Documents sufficient to show the average length of time each year from 2005 to 2015 for OLC to respond to FOIA requests.

10. Documents sufficient to show how many OLC employees have FOIA responsibilities in their job descriptions, along with the roles and responsibilities of each.

11. Documents sufficient to show the records disposition guidelines that apply to OLC for Federal Records Act purposes.

12. Documents sufficient to show whether OLC, or the Department more generally, utilizes any automatic program, such as Capstone, for Federal Records Act purposes.

13. Documents sufficient to show the number of requests for informal advice received and the number of requests in which OLC provided informal advice each year from 2005 to 2015, including whether the request originated within the Department, another agency, or the Executive Office of the President.

14. Information on whether Department emails containing legal guidance from OLC to the President, the Attorney General, or other agencies, whether formal or informal, are considered to be permanent federal records under the Department’s applicable records schedules.

The Committee on Oversight and Government Reform is the principal oversight committee of the House of Representatives and may at “any time” investigate “any matter” as set forth in House Rule X.

An attachment to this letter provides additional information about responding to the Committee’s request. When producing documents to the Committee, please deliver production sets to the Majority staff in room 2157 of the Rayburn House Office Building and the Minority staff in room 2471 of the Rayburn House Office Building. The Committee prefers, if possible, to receive all documents in electronic format.

Should you have any questions regarding this request, please contact Tristan Leavitt of Chairman Chaffetz’s staff at (202) 225-5074 or Krista Boyd of Ranking Member Cummings’s staff at (202) 225-5051. Thank you for your attention to this matter.