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RECORD NO.

11-4599
In The

United States Court of Appeals

For The Second Circuit

BRENNAN CENTER FOR JUSTICE AT NEW YORK UNIVERSTIY SCHOOL OF LAW,

Plaintiff Appellee,

v.

UNITED STATES DEPARTMENT OF JUSTICE; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES AGENCY FOR INTERNATIONAL DEVELOPMENT,
Defendants Appellants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

BRIEF OF AMICI CURIAE CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON AND ELECTRONIC FRONTIER FOUNDATION IN SUPPORT OF APPELLEE
Melanie Sloan Anne L. Weismann Adam J. Rappaport CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON 1400 Eye Street, N.W., Suite 450 Washington, D.C. 20005 (202) 408-5565 Counsel for Amicus Curiae Citizens for Responsibility and Ethics in Washington David L. Sobel ELECTRONIC FRONTIER FOUNDATION 1818 N Street, N.W., Suite 410 Washington, D.C. 20036 (202) 797-9009 Mark Rumold ELECTRONIC FRONTIER FOUNDATION 454 Shotwell Street San Francisco, CA 94110 (415) 436-9333

Counsel for Amicus Curiae Electronic Frontier Foundation

Counsel for Amicus Curiae Electronic Frontier Foundation

THE LEX GROUP 1108 East Main Street Suite 1400 Richmond, VA 23219
(804) 644-4419 (800) 856-4419 Fax: (804) 644-3660 www.thelexgroup.com

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CORPORATE DISCLOSURE STATEMENT Pursuant to Fed. R. App. P. 26.1, amici curiae Citizens for Responsibility and Ethics in Washington (CREW) and Electronic Frontier Foundation (EFF) submit this corporate disclosure statement. CREW does not have a parent company, and is not a publicly-held company with a 10% or greater ownership interest. CREW is a non-profit, non-partisan corporation, organized under section 501(c)(3) of the Internal Revenue Code. EFF does not have a parent company, and is not a publicly-held company with a 10% or greater ownership interest. EFF is a non-profit, non-partisan corporation, organized under section 501(c)(3) of the Internal Revenue Code.

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TABLE OF CONTENTS

Page CORPORATE DISCLOSURE STATEMENT ..........................................................i TABLE OF CONTENTS .......................................................................................... ii TABLE OF AUTHORITIES ....................................................................................iv STATEMENT OF AMICI CURIAE .......................................................................... 1 SUMMARY OF ARGUMENT ................................................................................. 2 ARGUMENT ............................................................................................................. 5 I. THE OLC MEMORANDA WERE ADOPTED INTO OFFICIAL AGENCY POLICY AND THEREFORE ARE NOT PROTECTED BY THE DELIBERATIVE PROCESS PRIVILEGE ..................................... 5 A. The Facts Here Establish The Defendant Agencies Incorporated The OLC Memoranda Into Their Final Policies ................................... 5 The Governments Narrowed Standard For Adoption Lacks Any Basis In Law ................................................................................ 10 The District Courts Application Of The Adoption Doctrine Advances The Purposes Of The FOIA................................................ 12 Exempting OLC Opinions Like Those At Issue From Public Disclosure Risks Creating A Body Of Secret Law ............................. 16

B.

C.

D.

II.

THE OLC MEMORANDA WERE ADOPTED INTO OFFICIAL AGENCY POLICY AND THEREFORE ARE NOT PROTECTED BY THE ATTORNEY-CLIENT PRIVILEGE ............................................. 20

ii

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III.

ACCEPTING THE GOVERNMENTS NARROW INTERPRETATION OF THE ADOPTION DOCTRINE AND ITS BROAD INTERPRETATION OF THE ATTORNEY-CLIENT PRIVILEGE WOULD DENY THE PUBLIC ACCESS TO THE REASONS JUSTIFYING A BROAD ARRAY OF AGENCY POLICIES ...................................................................................................... 25 A. The Governments Approach Will Lead To More Secrecy Generally In The Government Decision-making Process................... 25 Disclosure Here Will Cause No Harm To The Government .............. 27

B.

CONCLUSION ........................................................................................................ 30 CERTIFICATE OF FILING AND SERVICE CERTIFICATE OF COMPLIANCE

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TABLE OF AUTHORITIES Page(s) CASES Bronx Defenders v. U.S. Dept of Homeland Sec., 2005 U.S. Dist. LEXIS 33364 (S.D.N.Y. Dec. 19, 2005) .......................11, 29 Coastal States Gas Corp. v. Dept of Energy, 617 F.2d 854 (D.C. Cir. 1980) .....................................................15, 22, 23, 24 Dept of Interior v. Klamath Water Users Protective Assn, 532 U.S. 1 (2001).......................................................................................7, 14 Florida House of Representatives v. U.S. Dept of Commerce, 961 F.2d 941 (11th Cir. 1992) ....................................................................... 15 In re Lindsay, 158 F.3d 1263 (D.C. Cir. 1998)..................................................................... 23 Jordan v. U.S. Dept of Justice, 591 F.2d 753 (D.C. Cir. 1978) .................................................................13, 29 Mead Data Cent., Inc. v. Dept of Air Force, 566 F.2d 242 (D.C. Cir. 1977) ....................................................................... 24 Natl Council of La Raza v. Dept of Justice, 411 F.3d 350 (2d Cir. 2005) ...................................................................passim NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975)................................................................................passim Public Citizen v. Burke, 655 F. Supp. 318 (D.D.C. 1987).................................................................... 16 Russell v. Dept of Air Force, 682 F.2d 1045 (D.C. Cir. 1982)..................................................................... 29

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Shinnecock Indian Nation v. Kempthorne, 652 F. Supp. 2d 345 (E.D.N.Y. 2009) ..................................................... 29-30 Tax Analysts v. IRS, 117 F.3d 607 (D.C. Cir. 1997) .............................................................4, 22, 24 U.S. Dept of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989)....................................................................................... 13 STATUTES 5 U.S.C. 552(a)(2) ................................................................................................. 14 5 U.S.C. 552(b)(1)................................................................................................. 29 5 U.S.C. 552(b)(3)................................................................................................. 29 5 U.S.C. 552(b)(5)................................................................................................... 7 22 U.S.C. 7110(g)(2)............................................................................................... 5 22 U.S.C. 7631(f) .................................................................................................... 6 26 U.S.C. 501(c)(3) ................................................................................................. 1 OTHER AUTHORITIES Frank H. Easterbrook, Privacy and the Optimal Extent of Disclosure Under the Freedom of Information Act, 9 J. Legal Studies 775 (1980) .................. 13 H.R. Rep. No. 1497, 89th Cong., 2d Sess. (1966) .......................................13, 14, 15 Harold Hongju Koh, Protecting the Office of Legal Counsel From Itself, 15 Cardozo L. Rev. 513 (1993) ............................................................................... 17 Hearings Before the Subcommittee on Administrative Practice and Procedure of the Senate Judiciary Committee on S. 1160, S. 1336, S. 1758, and S. 1879, Administrative Procedure Act, 89th Cong., 1st Sess. (1965) .................................. 12

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Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration (2007) .................................................................... 18 Memorandum from David J. Barron, Acting Assistant Attorney General, Office of Legal Counsel, to Attorneys of the Office, Re: Best Practices for OLC Legal Advice and Written Opinions (July 16, 2010).................................16, 19 Office of Legal Counsel homepage, available at: http://www.usdoj.gov/olc/index.html ...................................................................... 16 Pamela Hess, Report: Bush Surveillance Program Was Massive, Assoc. Press, July 11, 2009 ...................................................................................... 17 S. Rep. No. 813, 89th Cong., 1st Sess. (1965)..................................................... 8, 14 Statement of President Barack Obama on Release of OLC Memos, Apr. 16, 2009, available at: http://www.whitehouse.gov/the_press_office/ Statement-of-President-Barack-Obama-on-Release-of-OLC-Memos .................... 17 Trevor W. Morrison, Stare Decisis in the Office of Legal Counsel, 110 Colum. L. Rev. 1448 (2010) ............................................................................. 28

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STATEMENT OF AMICI CURIAE1 CREW is a non-profit, nonpartisan corporation organized under section 501(c)(3) of the Internal Revenue Code. Through a combined approach of research, advocacy, public education, and litigation, CREW seeks to protect the rights of citizens to be informed about the activities of government officials and to ensure the integrity of those officials. Many of CREWs actions flow from the principles that transparency is a cornerstone of our democracy and government accountability is achieved through government transparency. EFF is a not-for-profit membership organization with offices in San Francisco, California and Washington, D.C. EFF works to inform policymakers and the general public about civil liberties and privacy issues related to technology, and to act as a defender of those rights and liberties. In support of their missions, both CREW and EFF frequently file Freedom of Information Act (FOIA) requests to access and make publicly available government documents that reflect on, or relate to, the integrity of government officials and their actions. CREW and EFF have filed FOIA requests in the past with the U.S. Department of Justice (DOJ) seeking legal opinions issued by DOJs

Counsel confirms no partys counsel authored the brief in whole or in part; no partys counsel contributed money intended to fund preparing or submitting the brief; and no person other than the amicus curiae, its members, or its counsel contributed money intended to fund preparing or submitting the brief and, if so, identifies each such person.

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Office of Legal Counsel (OLC). Amici have sought these opinions because they explain the rationale for controversial decisions DOJ and other agencies have made, including decisions amici have challenged in litigation. CREW and EFF participate as amici in this case to preserve the principle that both FOIA Exemption 5 and the adoption doctrine recognized in NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975) (Sears), and National Council of La Raza v. Department of Justice, 411 F.3d 350 (2d Cir. 2005) (La Raza), are to be construed narrowly in light of the FOIAs purpose of eliminating secret law, i.e. the working body of law explaining what an agency has done and why. Sanctioning the continued secrecy of the OLC memoranda at issue would deprive the public of information on a wide variety of subjects critical to understanding the governments rationale for adopting many controversial policies. This brief is filed with the consent of counsel for all parties in the case. SUMMARY OF ARGUMENT Recognizing secret law is anathema to our democratic system of government, Congress set out to eliminate it through the FOIAs mandatory disclosure requirements. The FOIA provides certain limited exceptions to disclosure, to be construed very narrowly consistent with the FOIAs overall purpose, but also establishes a framework to prevent agencies from keeping secret the body of decisions, orders, and memoranda that govern how and why

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government agencies act. The district court here properly concluded the OLC memoranda at issue must be disclosed because they had been incorporated into agency policy. To otherwise protect these legal opinions from disclosure would be to foster a growing body of secret law, the danger that lies at the heart of the FOIA. The deliberative process privilege incorporated into Exemption 5 of the FOIA requires disclosure of agency opinions and interpretations that, regardless of their label, effectively represent the agencys law and policy. The evidence of record here demonstrates the government incorporated OLC opinions concerning the constitutionality of two statutes into final and official agency policy for distributing grant funds. Following this Circuits decision in La Raza, the district court properly concluded under these facts the OLC opinions embodied agency policy and are therefore beyond the protection of the deliberative process privilege. In arguing to the contrary, the government defendants DOJ, the Department of Health and Human Services (HHS), and the U.S. Agency for International Development (USAID) (collectively the government) advance an interpretation of La Raza that undermines its governing rationale and would lead to the very dangers Congress sought to prevent through the FOIA. Far from establishing a narrow, bright-line test for when the adoption doctrine applies, La Raza stressed the importance of examining all the relevant facts and

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circumstances, 411 F.3d at 357 n.5 (emphasis in original), guided by the principle the public can only be enlightened by knowing what the [agency] believes the law to be. Id. at 360 (quoting Tax Analysts v. IRS, 117 F.3d 607, 618 (D.C. Cir. 1997)). Accepting the governments narrow application of the adoption doctrine to only those cases where an agency publicly and repeatedly adopts the policy rationale would provide a road map for agencies to keep secret policy rationales of vital concern to the public, from the justification for the use of torture on foreign combatants to the warrantless wiretapping of American citizens. The public interest in policy justifications exists regardless of whether the reasons for the policy have been acknowledged publicly or repeatedly by the agency. Keeping documents like the OLC memoranda at issue secret, even after agencies have relied on their conclusions and reasoning to formulate and implement policy, would impede accountability for both OLC and the agencies receiving the advice. Following La Raza, the district court also properly concluded the OLC memoranda are not protected by the attorney-client privilege. Once adopted as the government agencies official policies, the OLC memoranda fell outside the scope of Exemption 5. Moreover, the same policy rationale supporting disclosure of otherwise deliberative documents adopted or incorporated by reference into final opinions applies with equal force to the attorney-client context. At their core, the

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two privileges protect similar interests, and narrowly construing these privileges prevents the development of secret law. At bottom, the government appears to be asking this Court implicitly to overturn its La Raza decision and establish a much narrower construction of the adoption doctrine. Such a move would run directly counter to the reasons why Congress enacted the FOIA in the first place, and would give the government free license to develop and maintain a body of secret law governing how federal agencies actually act and why. These dangers can be prevented only by reinforcing not retreating from this Circuits La Raza opinion. ARGUMENT I. THE OLC MEMORANDA WERE ADOPTED INTO OFFICIAL AGENCY POLICY AND THEREFORE ARE NOT PROTECTED BY THE DELIBERATIVE PROCESS PRIVILEGE. A. The Facts Here Establish The Defendant Agencies Incorporated The OLC Memoranda Into Their Final Policies.

Plaintiff-appellee (plaintiff) seeks disclosure of three memoranda prepared by OLC for HHS and USAID addressing constitutional issues raised by the application of two federal statutes. (SPA 1, 11-13). One, the Trafficking Victims Protection Reauthorization Act, restricts grant funding to organizations that explicitly state they do not promote, support, or advocate the legalization or practice of prostitution. 22 U.S.C. 7110(g)(2). The other, the United States Leadership Against HIV/AIDS, Tuberculosis, Malaria Act, similarly restricts grant 5

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funding to organizations that have adopted an explicit policy opposing prostitution and sex trafficking. 22 U.S.C. 7631(f). On February 12, 2004, HHS requested an opinion from OLC on constitutional issues raised by the statutes funding restrictions. (SPA 11). Five days later, OLC provided HHS and USAID one of the memoranda at issue. (JA 34, 36; SPA 11). Later in February, USAID issued an Acquisition and Assistance Policy Directive (AAPD), which provides guidance to organizations seeking grants, applying the funding restriction to only foreign organizations. (JA 165-73; SPA 11-12). This policy reversed a January 2004 AAPD that applied the funding restriction to all groups. (JA 158-63; SPA 11). USAID reiterated the new policy in its July and August 2004 AAPDs. (JA 186-94, 199-205; SPA 13). HHS similarly issued a grant notice in June 2004, applying the funding restriction to only foreign organizations. (JA 175-77; SPA 12). In July 2004, OLC sent two more memoranda to HHS and USAID addressing the constitutional issues. (SPA 12-13). These memoranda reached a different conclusion about applying the funding restrictions to domestic organizations than the earlier OLC opinion, (SPA 17-18), and as a result the agencies subsequently changed their policies. (JA 132-33; SPA 14-15). In May 2005, HHS issued a new grant notice applying the funding restrictions to all organizations, (JA 216-19; SPA 15), and in June 2005, USAID similarly asserted

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in an AAPD its policy that the funding restrictions applied to both foreign and domestic organizations. (JA 221-28; SPA 15). In July 2005, plaintiff filed FOIA requests with OLC, HHS, and USAID seeking the OLC memoranda. (JA 248-49, 270-71, 302-03). In response, the three agencies withheld the memoranda, contending they are protected by the deliberative process privilege and/or the attorney-client privilege, and therefore exempt from disclosure under Exemption 5 of the FOIA. (SPA 3). Plaintiff subsequently commenced this action. (SPA 3). Under these facts, the district court properly granted plaintiffs motion for summary judgment and ordered the government to disclose the OLC memoranda. Reflecting well-settled law, the district court found although the OLC memoranda fell within the reach of the deliberative process privilege, they lost its protection when the agencies incorporated the memoranda into final agency policies. Exemption 5 of the FOIA allows the government to withhold inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency. 5 U.S.C. 552(b)(5). All exemptions to the FOIA are construed narrowly, Department of Interior v. Klamath Water Users Protective Assn, 532 U.S. 1, 8 (2001) (Klamath), and Congress made clear Exemption 5 was to be applied as narrowly as consistent

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with efficient Government operation. S. Rep. No. 813, 89th Cong., 1st Sess. 9 (1965). The exemption encompasses traditional, common-law privileges against disclosure, including the deliberative process privilege, which protects documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated, Sears, 421 U.S. at 150 (citation omitted), and the attorney-client privilege. Even if a record meets the requirements of these privileges, however, the agency must disclose that record if the agency has chosen expressly to adopt or incorporate by reference [a] . . . memorandum previously covered by Exemption 5 in what would otherwise be a final opinion. Sears, 421 U.S. at 161; La Raza, 411 F.3d at 356 (quoting Sears, 421 U.S. at 161). The district court here applied these principles to conclude the OLC memoranda had been incorporated in the agencies policies, and therefore were not protected from disclosure by Exemption 5. (SPA 10). The evidence of adoption included unredacted versions of the OLC memoranda produced in camera, the HHS and USAID policies as reflected in AAPDs and grant notices, correspondence between OLC and the agencies before and after the memoranda were provided, and public statements by the agencies and DOJ. (SPA 10-18). In reviewing this evidence, the district court rejected the notion that the facts of La

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Raza, where the attorney general publicly and repeatedly relied on an OLC memorandum, set the minimum requirements for incorporation. (SPA 16). Based on the evidence, [t]aken as a whole, and rejecting a bright-line test, the district court concluded the agencies had incorporated both the conclusions and reasoning of the February OLC memorandum into their initial policies applying the funding restrictions only to foreign organizations. (SPA 9, 16-17). From the public record alone there is little doubt the memorandum was incorporated, the district court added. (SPA 16). The district court further held the public statements of DOJ and the agencies lead to the inescapable finding that the agencies incorporated the conclusions and reasoning of the July OLC memoranda into their subsequent policies applying the funding restrictions to both foreign and domestic organizations. (SPA 17-18). In addition, following La Raza, the district court held the OLC memoranda are not protected by the attorney-client privilege because the agencies incorporated the OLC memoranda into their policies. (SPA 18-19). The district courts decision flows directly from Sears and La Raza and must be upheld. Any other conclusion runs afoul of this precedent and, as discussed infra, congressional intent to eliminate secret law.

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B.

The Governments Narrowed Standard For Adoption Lacks Any Basis In Law.

Ignoring the refusal of the La Raza Court to adopt a bright-line test, the government argues on appeal the adoption doctrine applies only in very narrow circumstances where the agency publicly, repeatedly, and expressly has adopted the agency policy in question. Brief for Defendants-Appellants at 17, 31-32, 34, 37, 39-43, 52-53. According to the government, the OLC memoranda do not meet this [s]tringent three-part standard, id. at 28, and therefore retain their deliberative process protection. The case law is to the contrary and makes clear the relevant inquiry is whether an agency has actually adopted or incorporated by reference the document at issue, La Raza, 411 F.3d at 359 (emphasis in original), not whether the agency has met specific evidentiary criteria. In Sears, the Supreme Court held the adoption doctrine applies if an agency chooses expressly to adopt or incorporate by reference the reasoning for an adopted policy. 421 U.S. at 161. This standard, by its very terms, requires only that the rationale for a policy be expressly adopted, not that the adoption be either public or repeated. Indeed, requiring public adoption contradicts the Courts further finding of adoption where an agencys reasons for adopting a policy are expressed within the agency, a finding based on the fact that, as agency working law, those reasons must be disclosed to the public. Id. at 152-53 (emphasis added). 10

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The governments proposed three-part standard does not stem from this decisional law, but instead incorporates the specific facts in La Raza. In that decision, this Court described the particular circumstances that warranted finding the OLC memoranda at issue had been incorporated into agency policy, which included repeated and public express adoptions of the memoranda. La Raza, 411 F.3d at 357-59. The decision, however, did not purport to establish the only circumstances in which the adoption doctrine could apply. See Bronx Defenders v. U.S. Dept of Homeland Sec., 2005 U.S. Dist. LEXIS 33364, at *18 (S.D.N.Y. Dec. 19, 2005) (while La Raza involved public and repeated reliance on the OLC memo, it does not follow that anything less than that will fail to abrogate the privilege). To the contrary, the Court rejected explicitly the governments proposed bright-line test for treating a document as expressly incorporated into an adopted agency policy, and made clear courts must examine all the relevant facts and circumstances in determining whether express adoption or incorporation by reference has occurred. La Raza, 411 F.3d at 357 n.5 (emphasis in original). See also Bronx Defenders, 2005 U.S. Dist. LEXIS 33364, at *17 (it is hard to believe that the Second Circuit intended to fashion such a narrow standard, and didnt bother to say so). In short, while the fact a policy was incorporated publicly or repeatedly may be relevant, it does not answer definitively the question of whether the policy actually was adopted.

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C.

The District Courts Application Of The Adoption Doctrine Advances The Purposes Of The FOIA.

The district courts application of the adoption doctrine to order public disclosure of the OLC memoranda also is supported by and furthers Congress intent in passing the FOIA: eliminating secret law. The governments insistence on a narrow application of the adoption doctrine here runs counter to this intent, and would deny the public access to the policy reasons behind a wide range of agency decisions and interpretations. Before the FOIA was passed in 1966, many agencies developed bodies of law that governed their treatment of the public, but were kept secret. According to a leading administrative law authority, prior to the FOIA nearly all agencies had in some degree, systems of secret law. Hearings Before the Subcommittee on Administrative Practice and Procedure of the Senate Judiciary Committee on S. 1160, S. 1336, S. 1758, and S. 1879, Administrative Procedure Act, 89th Cong., 1st Sess. 143 (1965) (statement of Kenneth Culp Davis). DOJs Immigration Service, for example, granted public access to only 58 of the approximately 700,000 orders and decisions it issued in 1963, even though many of those opinions served as agency precedent. Id. at 144, 187-88. The State Department similarly kept secret in its entirety a large body of law of its decisions on visa application appeals, including many written opinions interpreting law or policy. Id. at 145.

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The existence of these bodies of secret law and the problems caused by them critically motivated Congress in drafting the FOIA. Agency policy statements and interpretations are the end product of Federal administration and have the force and effect of law in most cases, yet under the present statute these Federal agency decisions have been kept secret from the members of the public affected by the decisions, the House Committee on Government Operations observed. H.R. Rep. No. 1497, 89th Cong., 2d Sess. 7 (1966). The committee noted further: As the Federal Government has extended its activities to solve the Nations expanding problems . . . the bureaucracy has developed its own form of case law. This law is embodied in thousands of orders, opinions, statements, and instructions issued by hundreds of agencies. Id. As an example, the public has a need to know . . . the details of an agency opinion or a statement of policy on an income tax matter. Id. at 8. Under the law before FOIA, however, this material could be and often was kept secret. In response, Congress passed the FOIA to eliminate secret law. See, e.g., U.S. Dept of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 796 n.20 (1989) (the FOIAs primary objective is the elimination of secret law) (quoting Frank H. Easterbrook, Privacy and the Optimal Extent of Disclosure Under the Freedom of Information Act, 9 J. Legal Studies 775, 777 (1980)); Jordan v. U.S. Dept of Justice, 591 F.2d 753, 781 (D.C. Cir. 1978) (en banc) (same). To accomplish this broad goal, Congress included in the statute 13

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affirmative disclosure provisions requiring agencies to make available for public inspection and copying several categories of records, including final opinions . . . [and] orders made in the adjudication of cases, statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register, and administrative staff manuals and instructions to staff that affect a member of the public. 5 U.S.C. 552(a)(2)(A)-(C). Through these provisions, Congress sought to make available to the public the countless orders, opinions, statements, and instructions federal agencies issue. H.R. Rep. No. 1497 at 7. Congress intent to eliminate secret law extends well beyond these specific provisions of the FOIA, and requires a narrow interpretation of the FOIAs exemptions. Klamath, 532 U.S. at 8. As a result, Exemption 5, like all of the FOIAs exemptions, must be applied as narrowly as consistent with efficient Government operation. S. Rep. No. 813 at 9. Accordingly, even if a record meets the requirements of the deliberative process privilege, the agency must disclose it if the agency has chosen to expressly to adopt or incorporate by reference [a] . . . memorandum previously covered by Exemption 5 in what would otherwise be a final opinion. Sears, 421 U.S. at 161; see also La Raza, 411 F.3d at 356. As the Supreme Court made clear in Sears, the conclusion that Exemption 5, properly construed, calls for disclosure of all opinions and interpretations which embody the

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agencys effective law and policy is powerfully supported by the affirmative provisions of the FOIA, which represent[] a strong congressional aversion to secret [agency] law. 421 U.S. at 153 (citations and quotation marks omitted).2 This linkage is rooted in the rationale animating both the affirmative provisions of the FOIA and the adoption doctrine. When an agency adopts a policy, members of the public have a right to know what it is. Otherwise, it becomes secret law. H.R. Rep. No. 1497 at 8 (the public has a need to know . . . the details of an agency opinion or statement of policy). Similarly, the public is vitally concerned with the reasons which did supply the basis for an agency policy actually adopted, because [t]hese reasons, if expressed within the agency, constitute the working law of the agency. Sears, 421 U.S. at 152-53; see also La Raza, 411 F.3d at 360.

Other courts similarly have linked the deliberative process privilege to an aversion to secret law. See, e.g., Florida House of Representatives v. U.S. Dept ofCommerce, 961 F.2d 941, at 945 n.4 (11th Cir. 1992) ([p]ermitting an agency to withhold predecisional material incorporated into agency policy raises the specter of secret agency law law which Congress finds repugnant to the ideals of an open society); Coastal States Gas Corp. v. Dept of Energy, 617 F.2d 854, 867 (D.C. Cir. 1980) (A strong theme of our opinions [related to the deliberative process privilege] has been that an agency will not be permitted to develop a body of secret law.). 15

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D.

Exempting OLC Opinions Like Those At Issue From Public Disclosure Risks Creating A Body Of Secret Law.

The danger of creating a body of secret law looms especially large here, where the requested records are legal opinions provided by OLC to two executive branch agencies on the interpretation of a statute. OLC provides authoritative legal advice to the President and all the Executive Branch agencies, and issues written opinions in response to requests from, among others, executive branch agencies. Office of Legal Counsel homepage, available at: http://www.usdoj.gov/olc/index.html. OLC opinions typically deal with legal issues of particular complexity and importance or about which two or more agencies are in disagreement, id., and the opinions are binding on the executive branch until withdrawn by the Attorney General or overruled by the courts. Public Citizen v. Burke, 655 F. Supp. 318, 321-22 & n.5 (D.D.C. 1987); see also Memorandum from David J. Barron, Acting Assistant Attorney General, Office of Legal Counsel, to Attorneys of the Office, Re: Best Practices for OLC Legal Advice and Written Opinions 1 (July 16, 2010) (2010 Best Practices Memo) (OLCs core function . . . is to provide controlling advice to Executive Branch officials on questions of law . . .). As a result, OLC opinions form a critical body of law within the executive branch. These opinions frequently involve controversial questions about the legality of policies, and are relied on to justify those policies. A series of OLC 16

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opinions, for example, concluded using enhanced interrogation techniques such as waterboarding, stress positions, and sleep deprivation on al-Qaeda detainees did not violate domestic anti-torture laws and international treaties. Government agencies relied on these memoranda in authorizing the techniques many condemned as torture, but kept them secret despite repeated requests for their publication. The memoranda were only disclosed in 2009 by the Obama Administration as a result of a FOIA lawsuit. Statement of President Barack Obama on Release of OLC Memos, Apr. 16, 2009, available at: http://www.whitehouse.gov/the_press_office/Statement-of-President-BarackObama-on-Release-of-OLC-Memos. Over the years, secret OLC opinions also formed the legal justification for a wide range of other controversial policies, including the warrantless wiretapping of American citizens by the National Security Agency,3 the kidnapping of foreign criminal suspects,4 and returning Haitian refugees captured at sea to their home country.5 Keeping OLC memoranda secret even after agencies have relied on their conclusions and reasoning to formulate and implement policies denies the public

Pamela Hess, Report: Bush Surveillance Program Was Massive, Assoc. Press, July 11, 2009.
4

Harold Hongju Koh, Protecting the Office of Legal Counsel From Itself, 15 Cardozo L. Rev. 513, 517-19 (1993). Id. at 520-22. 17

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crucial information about the rationale behind government action, and impedes accountability for both OLC and the agencies receiving the advice. Once allegations of harsh interrogation techniques came to light, questions were raised about how use of these techniques could be squared with U.S. laws and international treaty obligations. The eventual disclosure of the so-called torture memos revealed them to rest on cursory and one-sided legal arguments. Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration 149 (2007). As our history with these torture memos also reveals, secrecy encourages government leaking, a process that often results in a distorted and out-of-context picture that is no substitute for the full policy rationale. OLC memoranda are precisely the type of policy rationale to which the adoption doctrine should apply most strongly. As the reasons which . . . supply the basis for actually adopted agency policies, they are analogous to the secret law the FOIA was drafted to eliminate. Disclosure of these memoranda is critical to understanding the governments rationale for adopting many controversial policies, including the policies considered in the OLC memoranda at issue here. The district court properly recognized the vital public interest in these documents and the danger of creating a body of secret law if Exemption 5 were extended to protect them from disclosure.

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While the public has an interest in the reasons for any adopted agency policy, there is an even stronger interest in disclosing OLC opinions addressing a statutes constitutionality and whether the recipient agency abides by OLCs interpretation. OLC itself recognized this powerful interest in a memorandum discussing OLCs best practices for legal advice and written opinions. 2010 Best Practices Memo, at 5. In general, OLC explained, it operates from the presumption that it should make its significant opinions fully and promptly available to the public, which furthers the interests of Executive Branch transparency, thereby contributing to accountability and effective government, and promoting public confidence in the legality of government action. Id. Moreover, [t]imely publication of OLC opinions is especially important where the Office concludes that a federal statutory requirement is invalid on constitutional grounds and where the Executive Branch acts (or declines to act) in reliance on such a conclusion. In such situations, Congress and the public benefit from understanding the Executives reasons for non-compliance, so that Congress can consider those reasons and respond appropriately, and so that the public can be assured that Executive action is based on sound legal judgment and in furtherance of the Presidents obligation to take care that the laws, including the Constitution, are faithfully executed. Id. Here, plaintiff seeks simply to have OLC follow its own guidance. The three OLC memoranda address the constitutionality under the First Amendment of provisions in two statutes restricting funding to organizations that

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had adopted an explicit and affirmative policy opposing prostitution. (SPA 2-3). Relying on OLCs first memorandum, HHS and USAID put in place policies applying the funding restrictions to only foreign organizations. (JA 165-73, 17577). By implementing these policies, HHS and USAID decided not to comply with the two statutes, which on their face apply to both foreign and domestic organizations. Several months later, OLC changed its opinion, withdrew its previous advice, and issued two additional memoranda concluding the statutes could be applied to both foreign and domestic organizations. (SPA 11-15). HHS and USAID subsequently changed their policies to comport with OLCs opinion. (JA 216-19, 221-28). Accordingly, there is strong public interest in the OLC memoranda at issue, which opine on the reach and constitutionality of federal statutes and form the basis for final agency policy and action. II. THE OLC MEMORANDA WERE ADOPTED INTO OFFICIAL AGENCY POLICY AND THEREFORE ARE NOT PROTECTED BY THE ATTORNEY-CLIENT PRIVILEGE. The attorney-client privilege, like the deliberative process privilege, is among the traditional, common-law privileges against disclosure subsumed within Exemption 5. However, because Exemption 5, properly construed, calls for disclosure of all opinions and interpretations which embody the agencys effective law and policy, Sears, 421 U.S. at 153, the attorney-client privilege, like the deliberative process privilege, may not be used to shield from disclosure agency

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records which supply the basis for an agency policy actually adopted. Id. at 152. Consistent with the underlying purpose of Exemption 5, this Court in La Raza unequivocally held that the attorney-client privilege may not be invoked to protect a document adopted as, or incorporated by reference into, an agencys policy. La Raza, 411 F.3d at 360. This case is factually analogous and presents no compelling reason for this Court to overrule or otherwise disregard its previous holding. Thus, the district court, relying on this Courts decision in La Raza, properly held the attorney-client privilege could not shield the OLC memoranda from disclosure. This Courts unambiguous statement in La Raza establishes the inapplicability of the attorney-client privilege in this case: Like the deliberative process privilege, the attorney-client privilege may not be invoked to protect a document adopted as, or incorporated by reference into, an agencys policy. Id. Because the OLC memoranda at issue here supplied the basis for agency policy, the agencies are not permitted to make use of the Memorand[a] when it serves [their] ends but claim the attorney-client privilege when it does not. Id. Powerful support for this Courts application of the attorney-client privilege in La Raza comes from both controlling authority and FOIAs broader policy preventing the development of secret law. Longstanding precedent establishes that agency records adopted, incorporated by reference, or providing the rationale for

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final agency policies are not shielded from disclosure by any of the common law privileges of Exemption 5, including the attorney-client privilege. In Sears, advice and appeals memoranda explaining decisions of the general counsel of the National Labor Relations Board to abstain from filing complaints were not shielded from disclosure by either the deliberative process or the attorney work product privilege. Sears, 421 U.S. at 155. In Tax Analysts, the D.C. Circuit held memoranda generated by the Internal Revenue Services Office of Chief Counsel could not be withheld under either the deliberative process or the attorney-client privilege. Tax Analysts, 117 F.3d 607, 619 (D.C. Cir. 1997) (FOIA exemption 5 and the attorney-client privilege may not be used to protect this growing body of agency secret law). And in Coastal States, the D.C. Circuit likewise held that, in order to prevent the development of secret law, the agency could not withhold under either the deliberative process or the attorney-client privilege neutral, objective analyses of tax regulations authored by regional counsel. Coastal States, 617 F.2d at 863, 867. The same policy rationale supporting disclosure of otherwise deliberative documents adopted or incorporated by reference into final opinions applies equally in the attorney-client context. The two privileges, at their core, protect similar interests: both are intended to encourage the full and frank exchange of ideas and information. Compare Coastal States, 617 F.2d at 863 (attorney-client privilege

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encourages clients to be as open and honest as possible with attorneys), with id. at 866 (deliberative process privilege serves to assure that subordinates within an agency will feel free to provide the decisionmaker with their uninhibited opinions and recommendations). Once a document has been adopted or incorporated by reference into agency policy, however, the justification for protecting the record is greatly diminished: the probability that an agency employee will be inhibited from freely advising a decisionmaker for fear that his advice, if adopted, will become public is slight. Sears, 421 U.S. at 161. Once adopted, the policy becomes that of the agency not the individual employee or attorney to defend, and the public is vitally concerned with the reasons supporting agency policy. Id. at 153, 161. That the attorney-client privileges protections, like the protections of the deliberative process privilege, should cease after a documents adoption or incorporation by the agency carries particular force in the context of government counsel. While attorneys within the federal government play a variety of roles and serve in various capacities, the attorney-client privilege can protect communications when government attorneys stand in the shoes of private counsel. In re Lindsay, 158 F.3d 1263, 1269 (D.C. Cir. 1998) (noting communications are privileged when government attorney is representing federal employees sued in their individual capacities); see also Coastal States, 617 F.2d

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at 863 (attorney-client privilege could attach to communications generated in the course of negotiating a contract between the Air Force and a private company) (citing Mead Data Cent., Inc. v. Dept of Air Force, 566 F.2d 242 (D.C. Cir. 1977)). However, no private attorney has the power to formulate the law to be applied to others. Tax Analysts, 117 F.3d at 619. Matters are different in the governmental context, when the counsel rendering the legal opinion in effect is making law. Id. Thus, when a government attorneys communications reflect the governments legal position in its dealings with the [public], FOIA Exemption 5 and the attorney-client privilege do not apply. Id. As this Court held in La Raza, to permit an agency to adopt a legal position while shielding from public view the analysis that yielded the position is offensive to FOIA. 411 F.3d at 360. Because the OLC memoranda at issue here were adopted into HHS and USAID policy, and the rationale in those memoranda reflect the governments considered legal position, the OLC memoranda clearly are not protected by the attorney-client privilege.6

Even if this Court were to find the OLC memoranda were not incorporated by reference or adopted by the agencies, the memoranda still would not be protected by the attorney-client privilege. While the privilege can apply to an attorneys communications to a client, those communications must be based on confidential information provided by the client. Mead Data Cent., Inc., 566 F.2d at 254 (emphasis added). The OLC memoranda appear to simply contain an analysis of the constitutional issues raised by the grant restrictions under the two statutes, (JA 55), and there is no indication in the record that either HHS or USAID conveyed confidential information to OLC. (JA 317-326 6, 11). 24

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III.

ACCEPTING THE GOVERNMENTS NARROW INTERPRETATION OF THE ADOPTION DOCTRINE AND ITS BROAD INTERPRETATION OF THE ATTORNEY-CLIENT PRIVILEGE WOULD DENY THE PUBLIC ACCESS TO THE REASONS JUSTIFYING A BROAD ARRAY OF AGENCY POLICIES. A. The Governments Approach Will Lead To More Secrecy Generally In The Government Decision-making Process.

The dangers in the governments narrow construction of the adoption doctrine and its broad interpretation of the scope of the attorney-client privilege do not end with this case. Applying the adoption doctrine to only those cases where the agency has publicly and repeatedly adopted the rationale would deny the public access to a wide range of agency policy rationales that function as the agencys working law, but which the agency has chosen not to adopt publicly and repeatedly. Similarly, recognizing a protected attorney-client relationship any time OLC provides an interpretation of a statutes meaning, whether or not based on any confidential information received from the recipient agency, would blanket virtually all of OLCs work in secrecy. Beyond the lack of legal support, the governments interpretations simply make no sense. Agencies commonly adopt a rationale for a policy without referring specifically and publicly to the documents providing the rationale. The reasoning may even be adopted widely and expressly within an agency, but never made public. Under the governments approach these actually incorporated policy

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rationales would not be considered adopted for the purpose of the FOIA, and therefore not subject to disclosure. This approach elevates form over substance and ignores the La Raza Courts admonition that the proper inquiry is determining whether an agency has actually adopted or incorporated by reference the documents at issue. 411 F.3d at 359 (emphasis in original). Similarly, accepting the governments position that the rationale must be adopted repeatedly would lead to absurd outcomes. If, for example, the attorney general publicly and expressly adopted an OLC opinion as the rationale for a policy on a single occasion, and no one in the government did so again, the policy would not be adopted under the governments formulation. Yet without question the policy would, in fact, be an adopted policy. This highlights further problems with the governments approach, which lacks any standards as to how many times an agency must expressly say it is adopting reasoning before the reasoning is considered to be incorporated into an agency policy. Accepting the governments position also would provide a road map for agencies to keep secret policy rationales of vital concern to the public, and likely lead to far less disclosure of information about the reasons for adopted policies. Knowing a rationale would be considered incorporated into a policy only if it were publicly adopted, an agency simply could announce a policy and refuse to comment publicly on the reasons for it. Applying the governments standard, the

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rationale would not be incorporated and thus not subject to disclosure, providing agencies an incentive to avoid public discussion of the reasons for a policy. In this scenario, the public is likely to receive far less information about why an agency chose a particular policy, and only have access to the bare-bones policy itself. Yet it is the publics vital[] concern[] with the reasons underlying adopted policies the FOIA seeks to advance through its affirmative disclosure provisions and narrowly construed exemptions. This public interest in policy justifications exists regardless of whether or not those reasons have been acknowledged publicly by the agency. B. Disclosure Here Will Cause No Harm To The Government.

While the compelling public interest in disclosure of the OLC memoranda is manifest, harm to the government from disclosure is virtually non-existent. The government contends disclosure will interfere with the candid exchange of views between OLC and agencies seeking its opinions, and will lead to an avalanche of harmful disclosures. These claimed harms lack any basis in fact or law. First, there is no merit to the governments argument disclosure of the memoranda will interfere with candid exchanges of views and thorough evaluations of opposing arguments, which in turn would inhibit OLCs very ability to carry out its process of intra-governmental review and its mission as the governments confidential legal advisor. Brief for Defendants-Appellants at 50.

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The advice OLC provided in this case was followed by the agencies and implemented in their final policies. In these circumstances, [t]he probability that an agency employee will be inhibited from freely advising a decisionmaker for fear that his advice, if adopted, will become public is slight. Sears, 421 U.S. at 161. As the Supreme Court observed, agency employees generally will be encouraged rather than discouraged by public acknowledgment their policy suggestions have been adopted by an agency. Id. Moreover, OLC already has disclosed thousands of its opinions, but has offered no evidence any of these releases inhibited full and frank discussions, interfered with OLCs ability to carry out its mission, or otherwise impeded any attorney-client relationship OLC enjoys. Although OLC continues to keep many of its opinions secret, it also discloses them to the public voluntarily or in response to FOIA requests. By one count, OLC publicly released 1,191 opinions between the beginning of the Carter Administration and the end of 2009. Trevor W. Morrison, Stare Decisis in the Office of Legal Counsel, 110 Colum. L. Rev. 1448, 1476 (2010). Yet OLC offers no evidence of any ill effects stemming from any of these releases. Neither does OLC show these disclosures inhibited full and frank discussions or interfered with OLCs mission. Moreover, the government has provided no evidence of inhibition even where OLC has involuntarily disclosed opinions. In two cases in this Circuit, courts ordered public disclosure of OLC

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opinions over the governments strong objections, La Raza, 411 F.3d at 361; Bronx Defenders, 2005 U.S. Dist. LEXIS 33364, at *22, and there is no evidence those disclosures caused harm to the government. Second, the government claims disclosure will lead to an avalanche of harmful disclosures of other legal opinions. According to the government, after the district courts decision in this case, a party requesting DOJ legal advice regarding the use of lethal force against U.S. citizens who are al-Qaeda operatives filed a lawsuit and invoked the theories accepted by the district court. Brief for Defendants-Appellants at 50-51. From this the government warns of the substantial harm to our national security, and argues this development supports a narrow construction of the adoption doctrine. Id. at 51. The governments scare tactics fall wide of the mark. The FOIA itself exempts properly classified national security information, 5 U.S.C. 552(b)(1), as well as other materials specifically exempted by other statutes, including national security-related statutes, 5 U.S.C. 552(b)(3). No national security information need be disclosed by applying the adoption doctrine as the district court did here. Finally, the deliberative process privilege exists in part to protect the public from confusion resulting from premature exposure to discussions occurring before a policy has been finalized. See, e.g., Russell v. Dept of Air Force, 682 F.2d 1045, 1048 (D.C. Cir. 1982); Jordan, 591 F.2d 753 at 772-73; Shinnecock Indian

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Nation v. Kempthorne, 652 F. Supp. 2d 345, 360 (E.D.N.Y. 2009). Ironically, in this case disclosure actually would reduce the public confusion caused by the government taking a position and then radically altering that position twice in a short period of time. The kinds of repeated policy shifts that occurred here (see supra at 6-7), unquestionably confuse the public and lead to questions about the underlying rationale for the changes. While the public normally has a strong interest in the reasons underlying a policy, that interest is heightened in circumstances like these where disclosure would help clear up the confusion caused by the governments ever shifting policies. CONCLUSION For the foregoing reasons and those set forth in Plaintiff-Appellees Brief, the Court should uphold the ruling of the district court.

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DATED: February 3, 2012

Respectfully submitted, /s/ Melanie Sloan Melanie Sloan Anne L. Weismann Adam J. Rappaport Citizens for Responsibility and Ethics in Washington 1400 Eye Street, N.W., Suite 450 Washington, D.C. 20005 (202) 408-5565 Counsel for Amicus Curiae Citizens for Responsibility and Ethics in Washington David L. Sobel Electronic Frontier Foundation 1818 N Street, N.W., Suite 410 Washington, D.C. 20036 (202) 797-9009 Mark Rumold Electronic Frontier Foundation 454 Shotwell Street San Francisco, CA 94110 (415) 436-9333 Counsel for Amicus Curiae Electronic Frontier Foundation

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CERTIFICATE OF FILING AND SERVICE I hereby certify that on this 3rd day of February, 2012, I caused this Brief of Amici Curiae Citizens for Responsibility and Ethics in Washington and Electronic Frontier Foundation in Support of Appellee to be filed electronically with the Clerk of the Court using the CM/ECF System, which will send notice of such filing to the following registered CM/ECF users: Benjamin H. Torrance OFFICE OF THE U.S. ATTORNEY 86 Chambers Street New York, New York 10007 (212) 637-2703 Counsel for Appellants Dorothy Heyl MILBANK, TWEED, HADLEY & MCCLOY LLP 1 Chase Manhattan Plaza New York, New York 10005 (212) 530-5088 Counsel for Appellee I also certify that on this 3rd day of February, 2012, I caused the required number of bound copies of the Brief of Amici Curiae Citizens for Responsibility and Ethics in Washington and Electronic Frontier Foundation in Support of Appellee to be filed with the Clerk of the Court via UPS Next Day Air. /s/ Melanie Sloan

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CERTIFICATE OF COMPLIANCE 1. This brief complies with the type-volume limitation of Fed. R. App. P. 28.1(e)(2) or 32(a)(7)(B) because: [ X ] this brief contains [6,947] words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), or [ ] this brief uses a monospaced typeface and contains [state the number of] lines of text, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because: [ X ] this brief has been prepared in a proportionally spaced typeface using [Microsoft Word 2007] in [14pt Times New Roman]; or [ ] this brief has been prepared in a monospaced typeface using [state name and version of word processing program] with [state number of characters per inch and name of type style].

Dated: February 3, 2012

/s/ Melanie Sloan