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Forty-Seven Office of Legal Counsel Memo Titles that the DOJ Did Not Use B(5) to Redact

April 25, 2014
Kudos to the Federal Highway Program**?

Kudos to the Federal-Aid Highway Program? (Ryan Reilly)

Ryan Reilly of the Huffington Post has provided the most recent example of why Congressional reform is needed to fix the b(5) “withhold it because you want to” exemption.  In response to his FOIA request, the Department of Justice redacted nine out of ten unclassified Office of Legal Counsel memorandum titles using the b(5) “deliberative process” exemption.  Amy Bennett at Open the Government explains why this DOJ’s black out “raise[s] concerns that the government is not adhering to the rule of law, and reaffirm[s] that we cannot trust that it is doing so.”

Sadly, this redaction came on the heels of the Second Circuit Appeals Court’s unanimous rejection of the Department of Justice’s attempt to use b(5) to keep its Drone Assassination Justification OLC opinion (the whole thing, not just the title) from public view.   The Department of Justice’s argument that its need to protect its client (presumably the CIA) outweighed the public’s right to know “prove[d]too much” for the Second Circuit.  “We need not fear that OLC will lack for clients.”

To its credit, the Department of Justice has published a very interesting set of its historic OLC memorandums here –some even deal with FOIA.

In another lawsuit over current OLC memos, Anne Weismann of the Center for Responsibility in Washington is suing the Department of Justice to make all of its OLC opinions available.  CREW is using an underused provision of the FOIA that requires all executive branch agencies to make available to the public, “final opinions made in the adjudication of cases, and statements of policy and interpretation the agency has adopted.” OLC  opinions, as CREW’s Anne Weismann explains, fit squarely within both of these categories.


Would have been proactively disclosed in full in a truly Open Government…

In the meantime, here are the titles of 47 other OLC opinions dating to 2009 released to the National Security Archive in response to a FOIA request.  Thirty others were withheld under –you guessed it– b(5).  Another unknown quantity (“eleven lists,” presumably including the Drone Assassination Justification memo) were withheld under the b(1) national security exemption.

Many thanks to Sina Azodi for transcribing these titles.  They are:

Counsel to the President: Memorandum re Legal Issues Relating to the Testing Use, and Deployment of an Intrusion-Detection System ( EINSTEIN 2.0) to Protect Unclassified Computer Networks in the Executive Branch  ( Lehotsky) dated January 9, 2009

General Counsel/JMD: Memorandum re Status of Presidential Memorandum Addressing the Use of Polygraphs ( Marwell) dated January 14,2009

Attorney General: Memorandum re Validity of Statuary Rollbacks as a Means of Complying with the Ineligibility Clause ( Thompson/Anderson ) dated May 20, 2009

Attorney General: Memorandum re the Withdrawal of Office of Legal Counsel CIA Interrogation Opinions dated April 15, 2009

Acting AAG/OLA: Memorandum re the Constitutionality of the Ronald Reagan Centennial Commission Act of 2009 dated April 21, 2009

Acting Legal Adviser/DOS: Memorandum re Constitutionality of Section 7054 of the Fiscal Year 2009 Department of State, Foreign Operations, and Related Programs Appropriations Act              ( Paisner) dated June 1, 2009

Attorney General: Memorandum re Withdrawal of the Office of Legal Counsel Opinion dated June 11, 2009

AAG/OLA: Memorandum re Constitutionality of the Matthew Shepard Hate Crimes Prevention Act ( Stith) dated June 16, 2009

Counsel to the President: Memorandum re Eligibility of a Retired Military Officer and Appointment as Administrator of the  National Aeronautics and Space Administration                    ( LeBLanc)  July 8, 2009 )

Associate Deputy Attorney General/DOJ: Memorandum re Additional Legal Questions Concerning the EINSTEIN 2.0 Program dated August 14, 2009

General Counsel/SBA: Memorandum re Permissibility of Small Business Administration Regulations Implementing the Historically Underutilized Business Zone, 8 ( a)Business Development, and Service-Disabled Veteran-Owned Small Business Concern Programs               ( LeBLanc) dated 21, 2009

General Counsel/FHFA: Memorandum re Authority to the Former Inspector General of the Federal Housing Finance Board to Act as Inspector General for the Federal Housing Finance Agency ( Price) dated September 8, 2009

Assistant Secretary/TREAS: Memorandum re Constitutionality of Mandatory Registration of Credit Rating Agencies ( Cedarbaum) dated October 22, 2009

General Deputy General Counsel/HUD: Memorandum re Applicability of Section 163 of Division B of Public Law 111-68 to Payments in Satisfaction of Pre-Existing Contractual Obligations. dated October 23,2009

Principal Deputy Counsel to President: Memorandum Re Removability of the Federal Coordinator for Alaska Natural Gas Transportation Projects ( Venugopal) dated October 23,2009

Assistant Attorney General, Criminal Div.: Memorandum re Whether Ten-Year Minimum Sentence in 18 U.S.C § 924 (c) (1) (B) (I) Applies to Semiautomatic Assault Weapons ( Gorod) dated November 10,2009 ( Note this version was uploaded on Nov.24th for Publication)

Counsel to the President: Memorandum re Applicability of the Emoluments Clause and the Foreign Gifts and Decorations Act to the President’s Receipt of the Nobel Peace Prize dated December 7,2009

General Counsel/EPA: Memorandum re whether Subsection 104(b)(4) of the Clean Air Act Permits the Receipt of Monetary Donations ( Kirschner) dated December 8, 2009

The Attorney General: Memorandum re The Scope of the Attorney General’s Authority in Certifying Whether a State Has Satisfied the Requirements for Appointment of Competent Post-Conviction Counsel in Chapter 154 of Title 28, United States Code (Paisner) dated December 16,2009 

Legal Adviser/NSC: Memorandum re Engagement with the International Criminal Court ( Bulman-Pozen) dated January 15,2010

OMB: Memorandum re Postposed Constitution for the U.S. Virgin Islands The following memorandum was initially drafted in the Office of Legal Counsel at the Request of the Assistant Attorney General for Legislative Affairs. It analyzes several features of the proposed constitution of the U.S. Virgin Islands ( “USVI”), including: (1) the absence of an express recognition of the United Stated sovereignty and the supremacy of federal law; (2) Provisions for a special election on the USVI’S territorial status; (3) provisions conferring legal advantages on certain groups defined by place and timing of birth, timing of residency, or ancestry; (4) residence requirements for certain offices; (5) provisions guaranteeing legislative representation of certain geographic areas; (6) provisions addressing territorial waters and marine resources;(7) imprecise language in certain provisions of the proposed constitution’s bill of rights; (8) the possible need to repeal certain federal laws if the proposed USVI constitution is adopted; and (9) the effect of congressional action or inaction on the proposed constitution dated February 23, 2010 [ this memo was drafted by OLC at the request of OLA for signature]

Acting Deputy General: Memorandum re Whether the Criminal Provisions of the Violence Against Women Act Apply Otherwise Covered Conduct When the Offender and Victim Are the Same Sex  ( Bulman-Pozen) dated April 27,2010

Chief Counsel/IRS : Memorandum re Applicability of Tax Levis Under 26 U.S.C § 4312 6334 to Thrift Savings Plan Accounts  ( Price ) dated May 3, 2010

Testimony before the Committee on Energy and Natural Resources/Senate: Re Proposed Constitution for the Virgin Islands ( Caderbaun) dated May 19, 2010

Chairman/ Administrative Conference of the U.S. Memorandum re Applicability of the Emoluments Clause to Nongovernmental Members of ACUS ( Venugopal) dated June 3, 2010

General Counsel OPM: Memorandum re Whether the Entitlement to Reservist Differential Pay Under the Prior Version of 5 U.S.C. § 5538 Extends to the Period Following the Completion of Active Duty During Which a Returning Reservist may Apply for Report for Reemployment Under 38 U.S.C. § 4312 ( Akowuah) dated June 28,2010

Assistant General Counsel/DOC: Memorandum re Applicability of the Emoluments Clause and the Foreign Gifts and Decorations Act to the Goteborg Award for Sustainable Development ( Venugopal) dated October 6, 2010

Acting General/ Dept. of Treasury: Memorandum re Whether the Special Master for Troubled Asset Relief Program Executive Compensation Is a Principal Officer under the Appointments Clause ( Lilley ) dated November 5,2010

Acting General Counsel. SSA:  Memorandum re Disposition of Proceeds from the Sale of Real Property Acquired with Money from the Special Security Trust Funds ( Venugopal) dated December 17,2010

Acting Deputy Attorney General : Memorandum re The Availability of Crime Victims’ Rights Under the Crime Victims Act of 2004 ( Winn ) dated December 17, 2010 

General Counsel, EPA: Memorandum re Reimbursement or Payment Obligation of the Federal Government Under Section 313 (c ) (2)(b) of the Clean Water Act ( Dunbar) dated February 25, 2011

Attorney General: Memorandum re Use of Military Force in Libya dated April 1, 2011

Counsel to the President: Memorandum re Authority to Employ White House Office Personnel Exempt from the Annual Sick Leave Act Under 5 U.S.C § 6301 (2) (xi) During an Appropriations Lapse ( Pulham) dated April 8, 2011

Counsel to the President : Memorandum re Whether Bills May be Presented by Congress and Returned by the President by Electronic Means( Forrester) dated May3, 2011

Chair/Members, Access Review Committee: Memorandum re Applicability of the Foreign Intelligence Surveillance Act’s Notification Provision to Security Clearance Adjudications by the Department of Justice Access Review Committee ( Mizer ) dated June 3,2011

Counsel to the President: Memorandum re Constitutionality of Legislation Extending the Term of the FBI Director (Mizer) dated June 20, 2011

General Counsel/ Office of Science and Technology Policy: Memorandum re Unconstitutional Restrictions on Activities of the Office of Science 134(a) of the Department of Defense and Full Year Continuing Appropriations Act, 2011 dated September 19, 2011

Assistant Attorney General/CRM: Memorandum re Whether Proposals by Illinois and New York to Use the Internet and Out-of-State Transaction Processors to Sell Lottery Tickets to In-State Adults Violate the Wire Act ( Mizer) dated September 20,2011

Chief Counsel/ATF: Memorandum re Nonimmigrant Aliens and Firearms Disabilities under the Control Act. ( Dunbar) October 28, 2011

General Counsel/OMB/General Counsel USPS: Memorandum re Whether Postal Employees are Entitled to Receive Service Credit, for Purposes of their Retirement Annuity Under the Federal Employees’ Retirement System, for Periods of Employment During Which the U.S. Postal Service has not made its Required Employer Contributions ( Robin-Vergeer) dated November 1, 2011

Chief Counsel ATF: memorandum re State of Residence Requirements for Firearms Transfers             ( Akowuah) dated January 30, 2012

Counsel to the President: Memorandum re Lawfulness of Recess Appointments During a Recess of the Senate Notwithstanding Periodic Pro Forma Sessions dated January 6, 2012

General Counsels VA and GSA : Memorandum re Whether the General Services Administration May Proceed with an Assisted Acquisition for the Department of Veteran Affairs in Fiscal Year 2012 2012 Using the Department’s Fiscal Year 2009/2010 Funds ( Robin-Vergeer) dated March 2, 2012

Acting Chief Counsel, ATF: Memorandum re State and Local Deputation of Federal Law Enforcement Officers During Stafford Act Deployments ( Price ) dated March 5, 2012

Assistant General Counsel for Administration/DOC Memorandum: re The Anti-Deficiency Act Implications of Consent by government Employees to Online Terms of Service Agreements Containing Open-ended Indemnification Clauses ( Robin-Vergeer) dated March 27, 2012

General Counsel/VA Memorandum:  re Duty to Report Suspected Child Abuse Under 42 U.S.C § 13031 ( Mizer ) dated May 29, 2012

The President: Memorandum re Assertion of Executive Privilege over Documents Generated in Response to Congressional Investigation into Operation Fast and Furious dated June 19,2012 

These are all ripe for requesting under FOIA and, thanks to the Second Circuit’s decision, should now be easier to get.

Interested to read any comments on the relevance of specific titles.



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