[00:00:00] Speaker 04: Case number 24-5163 et al. [00:00:03] Speaker 04: Campaign for accountability versus United States Department of Justice appellants. [00:00:08] Speaker 04: Mr. Tenney for the appellant, Mr. Abdo for the appellee. [00:00:11] Speaker 02: Good morning, counsel. [00:00:14] Speaker 02: Mr. Tenney, please proceed when you're ready. [00:00:17] Speaker 00: May it please the court. [00:00:19] Speaker 00: Plaintiff has not identified any category of OLC opinions that would cause a need to deviate from this court's analysis and Electronic Frontier Foundation, regardless of the precise context in which the need for an OLC opinion arises. [00:00:36] Speaker 00: OLC is still at bottom providing legal advice to agencies who then in turn make policy decisions or other agency actions that may or may not be subject themselves to the reading provisions of the FOIA. [00:00:52] Speaker 00: The particular category that the district court identified was [00:00:58] Speaker 00: was resolving disputes between agencies. [00:01:01] Speaker 00: But there's nothing fundamentally different about those opinions than any others. [00:01:05] Speaker 00: In fact, the very opinion in Electronic Frontier Foundation itself reflected a disagreement between the Office of Inspector General and the FBI about a legal question. [00:01:16] Speaker 00: And although that case arose because it was the FBI that went [00:01:21] Speaker 00: to OLC for an opinion rather than a joint request from the FBI and OIG, there's no basis for concluding that this court would have come to the opposite conclusion if formally both of them had gone to OLC and said, we don't agree about this, as opposed to the FBI going itself. [00:01:38] Speaker 00: And in fact, as the record reflects, there's not really a difference. [00:01:42] Speaker 00: And OLC doesn't track which of its opinions arise from interagency disputes, which don't. [00:01:47] Speaker 00: In each case, [00:01:48] Speaker 00: OLC is just making a determination based on its discussions with one or more agencies and rendering legal advice. [00:01:57] Speaker 00: And that legal advice is subject to the deliberative process privilege and doesn't constitute a final opinion or a statement of policy or interpretation adopted by an agency and therefore is not subject to the reading provisions. [00:02:11] Speaker 04: Mr. Tenney, can I ask you a threshold question about CFA's standing? [00:02:19] Speaker 04: What do you think they need to show to establish standing under trans union and this court's precedence, such as in prisonology? [00:02:29] Speaker 04: Because the reading room provision is unlike the individual FOIA provision, where we have said that a person who seeks information and is denied it has informational standing. [00:02:41] Speaker 04: The reading room provision is a general obligation on the government. [00:02:45] Speaker 04: So what do they need to show to establish [00:02:49] Speaker 04: standing after TransUnion? [00:02:51] Speaker 00: I mean they they did ask for information and um and this court and others have [00:02:58] Speaker 00: recognize that you still need to exhaust your claims and as the district court recognized in this case, the only relief they can get is not relief that would require the government to comply with the reading room provision and put the materials on a website, but rather just provide it to them. [00:03:14] Speaker 00: So I'm not sure they're differently situated in the sense that they have [00:03:19] Speaker 00: Asked LLC for the information. [00:03:21] Speaker 00: They've received responses. [00:03:23] Speaker 00: So even though they didn't make a request under A3, which is typical, we haven't taken issue with the idea that they're still a requester of information. [00:03:32] Speaker 04: So are you suggesting that they have standing because their request is sort of functionally like an A3 request? [00:03:41] Speaker 00: I mean, to be clear, we haven't contested standing. [00:03:43] Speaker 00: We haven't taken a position on it. [00:03:49] Speaker 00: We have to independent right now I understand that and I know. [00:03:55] Speaker 00: I mean. [00:03:59] Speaker 00: I guess we haven't identified a distinction between asking for information that you think the agency was compelled to make public under A2 and asking the agency to provide that information to you, which you think is required under this court's case law, and filing a request under A3 for the same or similar information. [00:04:20] Speaker 00: I mean, that's not an issue that we've briefed or argued, but we haven't made an argument along those lines. [00:04:29] Speaker 02: And we have this decision for zoology where this similar issue came up. [00:04:33] Speaker 02: And one of the points that the court made in the course of that opinion was that the information in other cases involving A3 was sought, and then it was denied. [00:04:43] Speaker 02: I'm sorry, A2, the reading room provision. [00:04:47] Speaker 02: And here I take it that it seems like it functionally that's what happened that the requesters asked for the information and then under the reading the provision and then were rebuffed. [00:04:59] Speaker 00: Yeah, that's correct. [00:05:02] Speaker 00: Both initially and then they filed an amended complaint, and then there was in the record a response from OLC. [00:05:09] Speaker 00: I mean, it was to the complaining court, but it was still OLC providing an answer about that it was not planning to provide this information. [00:05:19] Speaker 00: And as I pointed out, the district court recognized that the relief that they are asking for and the only relief that they could get is producing the documents to them. [00:05:27] Speaker 02: So is it fair to say then from the government's perspective, as Judge Rao says, we have to consider standing no matter what. [00:05:32] Speaker 02: But is it fair to say that the government's position is that you don't see that there's a standing problem here? [00:05:38] Speaker 00: We have to make that assessment in the first instance, whether we agree with that. [00:05:41] Speaker 00: I mean, we certainly haven't identified one or argued that there's no standing. [00:05:45] Speaker 00: And so. [00:05:49] Speaker 00: We're not asking the court to rule on that ground. [00:05:52] Speaker 00: And I think if the court were to conclude that they have made a request in this case and concluded that that was sufficient to satisfy this court's precedents, that would be a reasonable resolution of the standing issue here. [00:06:06] Speaker 02: Can I ask a question about the merits? [00:06:09] Speaker 02: So there's kind of mirror image ways of looking at this. [00:06:14] Speaker 02: One is the way the government presents the case is, [00:06:16] Speaker 02: should look to see whether these opinions fall within the deliberative process privilege and if they do, the case is over. [00:06:25] Speaker 02: And the way that the district court looked at it and the way that the requesters look at it is kind of the opposite. [00:06:33] Speaker 02: Look, these fit within the reading room provision and therefore they have to be disclosed. [00:06:39] Speaker 02: And is there an order of operations that you think [00:06:43] Speaker 02: has to govern, or do you think it's up to the court just to choose which way to proceed? [00:06:52] Speaker 00: Fundamentally, the question under both approaches is the same, which is whether this is final or whether it's pre-decisional. [00:07:01] Speaker 00: And I guess a few points. [00:07:04] Speaker 00: One is it's definitely correct that if the deliberative process privilege applies, then there's no obligation to disclose, regardless of what the reading room [00:07:14] Speaker 00: provision says that the district court recognized that. [00:07:17] Speaker 00: And the 552B is an exemption from the entire act. [00:07:23] Speaker 00: So in that sense, you could certainly resolve the case on that ground. [00:07:27] Speaker 00: But I think the reason we focus so much on the deliberative process privilege is as much that that is the issue that this court has already resolved. [00:07:36] Speaker 00: And because everyone [00:07:37] Speaker 00: understands, and the Supreme Court has said, that if something is deliberative, then it's necessarily pre-decisional, and then it can't be a final decision or an adopted statement of policy, that the logic of Electronic Frontier Foundation means that the government wins whichever way you look at it, whether you look at it under B5 or whether you look at it as a question of whether the reading room provision applies. [00:08:01] Speaker 02: So I guess one scenario that could play out, and just correct me if I'm wrong in not understanding how FOIA processing works, [00:08:07] Speaker 02: One scenario that at least conceptually occurs to me is that if we focus on the reading room provisions and we say that the reading room provision doesn't, that these documents don't fit within the reading room provision, then there's not an affirmative obligation on the part of the government to post them. [00:08:27] Speaker 02: But then that wouldn't be to the exclusion of seek filing an individual request under A3. [00:08:34] Speaker 02: Is that right? [00:08:36] Speaker 02: That is true. [00:08:38] Speaker 02: And then would that then just tee up whether in response to that request, whatever set of opinions is sought is protected by the deloader process privilege? [00:08:48] Speaker 00: Right. [00:08:49] Speaker 00: If the court were to hold that the reading room provisions don't apply to these categories, and it would have to hold, in order for plaintiff to prevail, it would have to hold that it applies to all the opinions [00:09:03] Speaker 00: in some category, which seems plainly not true, then obviously the logic of the court's opinion in that regard might control, or at least highly influence, a subsequent analysis of whether the deliberative process privilege applies if these opinions were requested through A3 on an individual or categorical basis. [00:09:26] Speaker 00: But there can be a circumstance, and this court has explained it, I think, in AFSHAR, [00:09:32] Speaker 00: where materials are not subject to the reading room revisions, but nonetheless must be provided upon request. [00:09:38] Speaker 00: And so the court could leave that possibility open. [00:09:42] Speaker 00: Since all of the issues are briefed here, and since, as I said, in this particular context, the analysis that would lead the court to conclude that the reading room revisions don't apply [00:09:54] Speaker 00: would also lead the court to conclude that the deliberative process privilege does apply. [00:09:58] Speaker 00: It might be helpful for the parties if the court were to say all of that in resolving this case. [00:10:03] Speaker 00: But I don't disagree that if the court simply wanted to say the reading room provisions don't apply, and therefore this complaint should have been dismissed in its entirety or summary judgment granted for the government, [00:10:15] Speaker 00: on the one count that wasn't dismissed. [00:10:18] Speaker 00: And that would properly dispose of the case. [00:10:20] Speaker 02: But then would that not at least leave open conceptually the possibility? [00:10:24] Speaker 02: I mean, obviously, how it's written wouldn't affect things. [00:10:27] Speaker 02: But if that scenario played out, would it conceptually leave open the possibility that then an A3 request could be made, and then the delivered process privilege would be asserted? [00:10:37] Speaker 02: And then the courts would be faced with squarely confronting that question? [00:10:44] Speaker 00: That's right. [00:10:45] Speaker 00: The mere fact that the court had held that the reading room provisions didn't apply would not preclude a subsequent request along those lines. [00:10:54] Speaker 00: The logic of the court's opinion might well preclude it. [00:10:59] Speaker 03: So could there be a request for all OLC opinions resolving interagency disputes that were adopted by the agencies? [00:11:13] Speaker 00: In that circumstance, you would have to determine whether that request reasonably described, particularly the documents, because there could be some legal disputes about what was and wasn't adopted. [00:11:27] Speaker 03: And so I'm interested in that just because from the perspective of a requester, they don't know what interagency disputes have been presented to OLC. [00:11:38] Speaker 03: But there might be some subset of them that would qualify under the reading room [00:11:44] Speaker 03: Even if most OLC opinions are pre-decisional advisory type things, once they're adopted, I think it's clear that they would be subject to the reading room exception and also not subject to the deliberative process privilege. [00:12:00] Speaker 03: So how does a requester get at the things that they might be entitled to get? [00:12:06] Speaker 00: I guess a couple of responses. [00:12:07] Speaker 00: In terms of the reading room provision, the agency that would be subject to a requirement under the reading room provision would be the one that adopted the opinion because that would be the agency that had made it. [00:12:20] Speaker 03: The FOIA request could be made to OLC because the documents are also in your possession. [00:12:24] Speaker 00: Right, right. [00:12:25] Speaker 00: And I guess I was getting the point. [00:12:26] Speaker 00: The point I'm trying to make is that the OLC might not have an obligation under the reading room provision to provide the document. [00:12:33] Speaker 00: If OLC were aware that a particular document had been adopted by another agency, which would constitute a waiver of the privilege, then if a request was made to OLC for that opinion and it had not already been [00:12:48] Speaker 00: made public, then OLC would not claim the privilege over that opinion and would provide that opinion to the requester under A3. [00:12:56] Speaker 00: And OLC, in this case, has already expressed that it would intend to do that. [00:13:00] Speaker 00: So a requester could simply file an A3 request to OLC. [00:13:04] Speaker 00: And the other thing that OLC did in this case is make discretionary releases of some of the opinions that fall in the categories that plaintiffs have asked for. [00:13:14] Speaker 00: A requester doesn't have to say only the ones that are adopted or only the ones that aren't. [00:13:20] Speaker 00: I mean, if there's a particular category of OLC opinions that a requester wants, it can ask for them. [00:13:25] Speaker 00: And then OLC will make a determination about whether they're, A, whether they're privileged, which some of them may not be if they've already been adopted, and B, even if they're privileged, whether the government wants to waive the privilege and make a discretionary release of the opinions. [00:13:41] Speaker 00: And it regularly does so. [00:13:43] Speaker 03: So are you saying that if a requester asks for all of us the opinions resolving interagency disputes all see on its own initiative looks at all of those and decides which ones have been adopted or which ones otherwise are not privileged and releases those. [00:13:58] Speaker 00: With a caveat that as explained in the record, OLC doesn't actually track which of its opinions formally arose from interagency disputes because those aren't a particularly distinct category of decisions, but as a general matter, if someone makes a request for some defined category, and so OLC would have to figure out whether that was a category that it could ascertain, but if [00:14:22] Speaker 00: If, as a general matter, if someone makes a request to OLC for some category of opinion, a proper FOIA request, stipulating that it's a proper FOIA request for some category of OLC opinions, then OLC does a search, concludes whether there are opinions in the category requested, determines whether it wants to release them regardless of any privilege or if any privilege has been waived. [00:14:45] Speaker 00: And in fact, some of the opinions that would have fallen within this case have been discretionarily released. [00:14:52] Speaker 03: So if they make a request for all OLC opinions, OLC looks through all of its opinions and decides which ones are not subject to it. [00:15:00] Speaker 00: Again, I mean, there are separate questions about the breadth of a request and what the agency needs to do in responding to a request of that scope. [00:15:09] Speaker 00: But I don't understand that to be the thrust of your question. [00:15:15] Speaker 03: I'm just interested in how does a requester who actually might be entitled to get some of this information [00:15:20] Speaker 03: make a request that reveals that information. [00:15:24] Speaker 00: I mean, I can certainly tell you that people make requests for OLC opinions on particular topics, OLC opinions in particular timeframes, OLC opinions with particular characteristics, and OLC processes those. [00:15:36] Speaker 00: And sometimes the opinions have already been discretionarily released. [00:15:39] Speaker 00: Sometimes OLC concludes that it's prepared to release those as a discretionary matter. [00:15:45] Speaker 00: And sometimes as an electronic frontier foundation, OLC claims that they're privileged or are subject to some other FOIA exception and therefore withholds them. [00:15:55] Speaker 00: And that's no different from any other agency. [00:15:57] Speaker 00: And there's nothing to stop anybody from doing that. [00:16:01] Speaker 02: Brad, is there an upshot of your position [00:16:05] Speaker 02: Unless OLC discretionarily releases an opinion, which obviously can always happen, that every OLC opinion is protected by the deliberate process privilege. [00:16:15] Speaker 02: So OLC never as a matter of FOIA has to disclose an opinion. [00:16:20] Speaker 02: It may be that another agency might adopt an OLC opinion [00:16:25] Speaker 02: and then that other agency might be required to disclose it as a matter of FOIA. [00:16:30] Speaker 02: But OLC is never required to release an opinion, even if it's ultimately adopted by another agency. [00:16:36] Speaker 02: OLC itself is never required to release an opinion in response to a FOIA request. [00:16:41] Speaker 02: Is that the upshot of the government? [00:16:44] Speaker 00: Not quite. [00:16:44] Speaker 00: There's one caveat. [00:16:49] Speaker 00: If you substituted in response to a request with under the reading room provisions, then that would be correct. [00:16:56] Speaker 00: If there is a request for an opinion that a different agency has adopted, then OLC would no longer treat that as privileged. [00:17:04] Speaker 00: And therefore, subject to other exemptions, would have an obligation to release it pursuant to a request. [00:17:10] Speaker 02: But it's not that they would discretionarily not treat it as privileged. [00:17:15] Speaker 02: It's just that the privilege wouldn't work anyway because it will have been waived. [00:17:19] Speaker 00: That's correct. [00:17:20] Speaker 00: But so in direct response to your question, there could be a circumstance in which OLC, in response to a request, as is distinguished from under the reading room provisions, would have an obligation. [00:17:31] Speaker 02: One other question on this. [00:17:33] Speaker 02: So the way that this case has come up, and then the way EFF, Electronic Frontier Foundation, was litigated, it's OLC, the relevant agency is the agency that requests the opinion from OLC. [00:17:49] Speaker 02: The question is, for reading room provision purposes, whether there's finality and it's congealed into an opinion and those kinds of things with respect to this other agency. [00:17:59] Speaker 02: And the logic is that what OLC does, even if it's practically treated as binding vis-a-vis the other executive branch agency, it doesn't dictate something that the other agency has to do. [00:18:14] Speaker 02: What about a request that's [00:18:16] Speaker 02: that is predicated on the logic that the agency is OLC or DOJ itself, and it's finalized to OLC DOJ itself, regardless of what may ultimately ensue with respect to another agency. [00:18:32] Speaker 00: That is an argument, or at least a version of argument, that has been advanced in Electronic Frontier Foundation and in CRU and in this case. [00:18:41] Speaker 00: You can always say that [00:18:47] Speaker 00: when there's an executive branch decision being made, if some component of the executive branch has provided advice. [00:18:54] Speaker 00: For example, if the Department of Defense were making a determination about whether to engage in some course of conduct and then asked EPA for advice about the environmental consequences, then EPA would provide its advice. [00:19:08] Speaker 00: And that might be final as to what EPA is saying. [00:19:12] Speaker 00: But nobody would think that that's a final decision, because the final decision is the one that's being made by the Department of Defense. [00:19:17] Speaker 00: And all of the rationales for the deliberative process privilege would apply in that circumstance, because you wouldn't want people to know that the Department of Defense had asked EPA what advice EPA had given. [00:19:29] Speaker 00: EPA would want to be able to give advice candidly and freely without revealing it to the public. [00:19:35] Speaker 00: And so the mere fact that the consulting agency [00:19:39] Speaker 00: or the consulting components don't all fall within the same executive branch agency doesn't mean that the advice rendered by one component of the executive branch is final in the relevant sense for purposes of the deliberative process privilege. [00:19:52] Speaker 00: I mean, this court decades ago has recognized that principle in the context of agencies making budget requests. [00:20:01] Speaker 00: And if they make a budget request to OMB, even if the agency is done, nobody thinks that [00:20:06] Speaker 00: that the budget request is other than deliberative because OMB or the president is the one that's ultimately going to decide. [00:20:12] Speaker 02: So reframing the relevant agency from the government's perspective wouldn't change anything in reality and therefore it doesn't change the way you've put the case stop operations to deliver process privilege as a bar against disclosure. [00:20:26] Speaker 00: Right. [00:20:27] Speaker 00: The point is that the question is the way this fits into the determination of what policy to adopt. [00:20:35] Speaker 00: And if there is some step of that process that is merely a step and not the finality of that process, then that is pre-decisional and deliberative. [00:20:43] Speaker 00: And who is doing it is not what matters. [00:20:47] Speaker 04: Can I just ask you a factual question? [00:20:49] Speaker 04: When OLC gives one of these opinions to another agency, and if the agency adopts the OLC opinion, [00:20:56] Speaker 04: family as part of its decision making process. [00:21:00] Speaker 04: Does the agency usually in that situation check with OLC before making a disclosure of an OLC opinion? [00:21:08] Speaker 00: It's a hard question to answer because it's actually quite uncommon that agencies do adopt OLC opinions. [00:21:14] Speaker 00: I mean, they're legal advice in the same way that if the general counsel of a company or of an agency provided advice, it would be unusual that. [00:21:24] Speaker 04: It's unusual, but it's not never. [00:21:27] Speaker 04: I mean, sometimes agencies want to say that what they're doing has been supported by an opinion from OLC. [00:21:32] Speaker 04: So I'm just wondering in those situations, if that agency is then free to just [00:21:37] Speaker 04: release the OLC opinion. [00:21:39] Speaker 00: Just to be clear, if an agency says that what it's doing is supported by OLC, that is different from saying the reasons that we're taking this action are all of the reasons that were set out in the OLC opinion. [00:21:51] Speaker 00: So that might not constitute adoption. [00:21:54] Speaker 04: They fully adopt. [00:21:55] Speaker 00: But if they say we are taking this action for the reasons stated in the OLC opinion of this state, I don't know that that comes up enough that I can tell you that there's a general rule. [00:22:07] Speaker 00: It would surprise me if an agency did that without talking to OLC about it. [00:22:11] Speaker 00: But I can't stand here and tell you from practical experience that I know the answer of how that would play out. [00:22:17] Speaker 02: Thank you. [00:22:19] Speaker 02: All right. [00:22:20] Speaker 02: Thank you, Your Honor. [00:22:20] Speaker 02: We don't have any available time for rebuttal. [00:22:28] Speaker 01: Good morning and may it please the court. [00:22:31] Speaker 01: Congress enacted FOIA's reading room provision to prevent the accumulation of secret law. [00:22:36] Speaker 01: And yet the OLC argues that may continue to suppress the three categories of opinions at issue here, even though these opinions directly establish the law and policy of the agencies that solicit them. [00:22:47] Speaker 01: The government's entire argument rests on this court's decision in EFF, but its interpretation of that case is wrong for two fundamental reasons. [00:22:54] Speaker 01: First, EFF did not involve a claim under 552A2A. [00:22:58] Speaker 01: The core reasoning of the case focused on whether the OLC opinion at issue determined agency policy or had been adopted. [00:23:05] Speaker 01: Those considerations are relevant under A2B, which requires the disclosure of opinions [00:23:10] Speaker 01: of statements of policy which have been adopted, but they're not relevant to 552A2A. [00:23:15] Speaker 01: And so EFF is no barrier to our claims with respect to two of the three categories at issue. [00:23:21] Speaker 01: And that's the reasoning that then Judge Jackson and Judge Cobb both relied on in ruling that the category of opinions resolving interagency disputes must be disclosed under the reading room provision. [00:23:35] Speaker 01: Second, even under 552A2B, EFF just isn't categorical. [00:23:40] Speaker 01: It made clear that OLC opinions qualify as working law when they speak with authority on agency law or policy. [00:23:46] Speaker 01: The opinion in EFF didn't speak with authority because it wasn't sought to establish the law of the agency and because, as the court said, it merely examined policy options. [00:23:55] Speaker 01: But the three categories of opinions at issue here do speak with authority. [00:23:58] Speaker 01: The explanation why is unique to each category, but generally for each, they are sought to establish agency, law, or policy, and there is no distance between the OLC's legal conclusions and agency, law, or policy. [00:24:09] Speaker 02: Can I ask you about the first? [00:24:11] Speaker 02: You said you had two distinctions on the first one. [00:24:14] Speaker 02: But EFF was about the deliberative process privilege at the end of the day, right? [00:24:19] Speaker 02: That's right. [00:24:20] Speaker 02: So if EFF governs with respect to the deliberative process privilege, [00:24:24] Speaker 02: and put aside your second ground for distinction, then how could it matter that then the deliberate process privilege is just a bar? [00:24:34] Speaker 01: I don't think that's right. [00:24:35] Speaker 01: If, as a textual matter, these opinions fall within A2A, if their final opinion is made in adjudication of cases, then the Supreme Court said very clearly in Sears, A2A opinions may never be withheld under Exemption 5. [00:24:47] Speaker 01: That means they are, as a category, simply not deliberative. [00:24:51] Speaker 02: I thought in Sears, there's also a footnote [00:24:55] Speaker 01: There is a footnote that says hypothetically, that's right. [00:24:57] Speaker 01: There's a footnote that says hypothetically, if an opinion could be both deliberative and final opinion, then maybe the court would have to resolve this question. [00:25:04] Speaker 02: But it made clear- No, I thought what that footnote said is then it would be within the deliberate process privilege and therefore didn't need to be- You're correct. [00:25:10] Speaker 01: But the court made clear that those opinions, by virtue of falling within A2A, were not deliberative. [00:25:15] Speaker 01: And the same is true here with respect to these three categories. [00:25:19] Speaker 02: But I guess I don't understand the logic of that because- [00:25:22] Speaker 02: I think what that footnote indicates is what the text of the statute seems to indicate, which is that if something falls within the deliberate process privilege, then the rest of the act doesn't apply, including the reading room privilege. [00:25:32] Speaker 02: And so I think there's a lot to what you're saying, which is that the presupposition of seers is that this practically may never come up, because for the same reason something falls within or without the reading room provisions, [00:25:46] Speaker 02: It may fall within or without the deliver process privilege. [00:25:49] Speaker 02: And so the Venn diagrams don't ever overlap. [00:25:51] Speaker 02: And so you're never going to be faced with this. [00:25:53] Speaker 02: But it did seem like what that footnote said and what's echoed by this statutory structure is that if you engage the possibility that the Venn diagrams overlap to some extent, then the deliver process privilege governs. [00:26:05] Speaker 02: And if something falls within the deliver process privilege, then it doesn't. [00:26:08] Speaker 02: It can't fall. [00:26:09] Speaker 02: It can't be required to be disclosed in the reading room. [00:26:11] Speaker 01: I think that's right, but the considerations that this court address in EFF are not general deliberative process privilege questions. [00:26:18] Speaker 01: The questions that the court addressed were, did the OLC speak with authority? [00:26:22] Speaker 01: And even if not, was the opinion adopted? [00:26:25] Speaker 01: Those are two ways by which an opinion might fall within A to B and therefore not be deliberative in the working law framework. [00:26:33] Speaker 01: But it doesn't engage the question of whether [00:26:35] Speaker 01: If something is otherwise a final opinion made in the adjudication of a case, it is somehow deliberative. [00:26:41] Speaker 01: And I think just as a practical matter, it is. [00:26:42] Speaker 01: And let me give you an example from our second category. [00:26:46] Speaker 01: The second category involves situations where an agency is actually adjudicating a claim of private right. [00:26:51] Speaker 01: the adjudication turns on some question of law and they go to the OLC for an authoritative statement of the law that applies to that adjudication. [00:26:58] Speaker 01: They being an agency. [00:27:00] Speaker 01: They being the agency goes to the OLC. [00:27:01] Speaker 01: And in that circumstance, the opinions at the OLC issues are then, you know, they're sought specifically to establish the law of the case, the law of the underlying adjudication. [00:27:10] Speaker 01: And those opinions are materially indistinguishable from this court's past opinions, coastal states, tax analyst one and two and Schleffer. [00:27:16] Speaker 01: There's simply no material distinction. [00:27:18] Speaker 01: An agency adjudicator goes to an agency lawyer to get the law that applies to the adjudication, and this court held correctly in those four cases and others that those resulting opinions are not deliberate. [00:27:30] Speaker 01: They are instead the law of the agency because in certain, in the circumstances, [00:27:34] Speaker 01: They are specifically to establish the law. [00:27:37] Speaker 02: So I mean, you're right to rely on prior cases. [00:27:40] Speaker 02: And because we've had a lot of cases that say a lot of things. [00:27:44] Speaker 02: And I guess it looked like what EFF did was it took into account those same cases, including the tax analyst cases. [00:27:52] Speaker 02: And it drew a distinction based on the fact that in those cases, there was a top down dynamic at work. [00:27:59] Speaker 02: within the agency, what was going on is the legal opinion that was at issue was a directive, and it was binding on people who are lower in the organization. [00:28:09] Speaker 02: And that just doesn't, what EFF seemed to say is that's not what's the dynamic when another agency requests an EFF, I'm sorry, an OLC opinion. [00:28:19] Speaker 02: That's not [00:28:20] Speaker 02: the same dynamic because the requesting agency, yes, as a practical matter, their OLC opinions are controlling. [00:28:29] Speaker 02: But EFF specifically wrestled with whether they're binding in the sense that they are final and operative for reading room provision purposes. [00:28:40] Speaker 02: And EFF seemed to indicate that they wouldn't. [00:28:42] Speaker 01: I think EFF applied that logic to a single, not that logic, it just found that the single opinion at issue was flowing upward in the context of a decision making process. [00:28:53] Speaker 01: It did not purport to establish a categorical bar to the application of FOIA to the OLC. [00:28:58] Speaker 01: And it couldn't have. [00:28:59] Speaker 01: The OLC's opinions in the context of the categories that we're talking about do in fact flow downward from the agency that is given the authoritative power to interpret the statutes and laws at issue to an agency that is tasked simply with implementing them. [00:29:15] Speaker 01: When, for example, in the attorney's fees opinion that we point to, there was a $150,000 award of attorney's fees [00:29:22] Speaker 01: It was unclear which agency defendant was obligated to pay it. [00:29:25] Speaker 01: A federal statute said the agency over which the party prevailed has to pay, and the agencies went to the OLC. [00:29:32] Speaker 01: Tell us which agency, and the OLC said HUD. [00:29:34] Speaker 01: The Department of Housing and Urban Development is that agency. [00:29:37] Speaker 01: There was no decision to be made at that point. [00:29:39] Speaker 01: HUD bore the legal responsibility to pay those fees, and it flowed downward. [00:29:44] Speaker 01: There was no ongoing deliberation, and the same is true [00:29:47] Speaker 01: in our first category. [00:29:48] Speaker 01: There is no deliberation when two agencies bring established policies to the OLC. [00:29:54] Speaker 01: For example, in the reservist leave opinion that we point to, [00:29:58] Speaker 01: There are two agencies that have different policies on reservist leave. [00:30:00] Speaker 01: The VA, the Department of Veteran Affairs, said military reservists can choose which form of statutory leave to use first. [00:30:07] Speaker 01: That was their policy, and that's what their reservists were operating under. [00:30:11] Speaker 01: The Office of Personnel Management had the opposite policy. [00:30:14] Speaker 01: It said they couldn't choose. [00:30:15] Speaker 01: They had to use category one before going on to category two. [00:30:18] Speaker 01: to establish policies, no deliberation. [00:30:20] Speaker 01: And the OLC said the VA's policy was correct. [00:30:25] Speaker 01: There was no further decision to be made at that point with respect to those policies. [00:30:29] Speaker 03: So it seems to me that it's problematic for you that you are trying to get a ruling that applies to a whole category of cases. [00:30:37] Speaker 03: And you're pointing to these specific examples that seem to support your position. [00:30:42] Speaker 03: But there could be [00:30:44] Speaker 03: Situations where all see issues and opinion and then nobody does anything with it. [00:30:48] Speaker 03: They haven't adopted it. [00:30:49] Speaker 03: They just haven't used it. [00:30:51] Speaker 03: And also, I think it's also problematic if you want to rely on subsection a you're trying to say that a final opinion of OLC is made in the adjudication of cases by the agency because the adjudication is by the agencies, but the final opinion is by OLC. [00:31:08] Speaker 03: So I see those as two potential weaknesses. [00:31:12] Speaker 01: Respectfully, I don't think either is a problem. [00:31:14] Speaker 01: In this court's past cases, it adopted this precise categorical approach. [00:31:20] Speaker 01: For example, in tax analyst two, technical assistance memoranda of the chief counsel of the IRS were at issue. [00:31:27] Speaker 01: And the court took a category by category approach and said some. [00:31:30] Speaker 03: I don't have any problem with taking a category by category approach generally. [00:31:34] Speaker 03: I'm just saying under the circumstances that you're presenting, [00:31:37] Speaker 03: You're saying in every case, OLC issues an opinion, and it is? [00:31:43] Speaker 01: Well, we're not saying in every case. [00:31:44] Speaker 01: We're saying with respect to only these three narrow categories. [00:31:46] Speaker 01: And these are narrow categories with respect to the OLC. [00:31:48] Speaker 03: Every case in the category, but isn't there a possibility that the OLC could issue an opinion in an interagency dispute, and then nobody does anything with it? [00:31:57] Speaker 01: And it's not adopted? [00:31:59] Speaker 01: Our understanding, the record reflects that the examples that we put into the record are emblematic of the category as a whole. [00:32:04] Speaker 01: And the government has never disputed that. [00:32:06] Speaker 01: It is released 1400 opinions. [00:32:07] Speaker 01: We've studied every single one and we're not aware of examples in the categories that we have pointed to that are of the nature that you're describing. [00:32:14] Speaker 01: But if there were the rare off chance that one happened to fall, you know, otherwise fit within the category as this court described it in a ruling and the OLC maintained that for whatever reason, there was some feature of this opinion. [00:32:28] Speaker 01: that was salient in the analysis that wasn't in the category generally, the OLC would always at that point be able to withhold it, and we could have litigation over that. [00:32:35] Speaker 01: But they haven't disputed, I don't think, that the categories we've identified, the examples we put on the record, are emblematic of the categories. [00:32:43] Speaker 01: And that mode of analysis, by the way, was how the court engaged the question in tax analysts too. [00:32:50] Speaker 01: There were technical assistance memorandum that fit within [00:32:53] Speaker 01: three or four different categories. [00:32:55] Speaker 01: The court said one of them was working law. [00:32:57] Speaker 01: The rest weren't. [00:32:58] Speaker 01: And even within the category of working law, some were unique. [00:33:01] Speaker 01: And the court allowed their withholding. [00:33:05] Speaker 01: That's all we're asking for here. [00:33:07] Speaker 01: I forget the second. [00:33:09] Speaker 03: If you want to rely on subsection A, it says final opinions made in the adjudication of cases. [00:33:16] Speaker 03: But it seems to me that your analysis is the final opinion is by OLC, but the adjudication of cases is by the agency. [00:33:23] Speaker 01: That's right, but I don't think that matters. [00:33:24] Speaker 01: When the OLC issues the opinion at that moment, it is the final opinion made in the adjudication of a case and it is. [00:33:30] Speaker 03: And how is it a case? [00:33:32] Speaker 01: It depends on the two different categories are slightly different. [00:33:35] Speaker 01: So the second category is there is obviously an adjudication going on below. [00:33:39] Speaker 01: For example, in the [00:33:41] Speaker 01: Social Security Administration case, the DOMA case that we point to, the Social Security Administration was adjudicating a claim for insurance benefits on behalf of a specific individual, Elijah, who is the son of women in a same-sex marriage, a same-sex civil union, excuse me, [00:33:56] Speaker 01: in Vermont, and the question arose whether the Defense of Marriage Act foreclosed Elijah's entitlement to marriage. [00:34:02] Speaker 03: I understand that that was an interagency dispute, a case that's been adjudicated. [00:34:07] Speaker 01: For the reasons that then Judge Jackson explained, the OLC has a process that is both statutorily provided for and provided for by executive order to adjudicate disputes between settled policies of agencies [00:34:21] Speaker 03: The agencies those those sources don't say that what what advice OLC gives is binding. [00:34:28] Speaker 01: Well, the government concedes that OLC opinions are binding and they are, in fact, binding for 200 years. [00:34:32] Speaker 03: Those sources don't say it's binding just for purposes of saying adjudicating a case. [00:34:36] Speaker 01: Well, I'm not sure that's right. [00:34:37] Speaker 01: I think 28 U.S.E. [00:34:38] Speaker 01: 512 makes very clear that the opinions of the attorney general are the opinions of the executive branch. [00:34:43] Speaker 01: And the government has never disputed in this case. [00:34:46] Speaker 01: It used to 10 years ago, it used to dispute that OLC opinions were binding. [00:34:50] Speaker 01: But all over is brief. [00:34:51] Speaker 01: In this case, it is made clear that its opinions are binding. [00:34:53] Speaker 01: It says so in the best practices memo. [00:34:55] Speaker 01: And for 200 years, not a single OLC opinion has been contravened by an underlying agency. [00:35:00] Speaker 01: There's just no question. [00:35:01] Speaker 04: Even in this court's past cases... That's when they publish an opinion. [00:35:04] Speaker 04: I mean, agencies, as a practical matter, sometimes disregard OLC's advice. [00:35:10] Speaker 01: I don't think that's accurate, Judge Rao. [00:35:12] Speaker 01: And it's not just when the OLC publishes an opinion. [00:35:14] Speaker 01: The scholarship suggests that for 200 years, every OLC opinion that has been issued has been treated as binding by the agencies that receive them. [00:35:22] Speaker 01: And the government has not identified a single instance to the contrary in any case, let alone this one. [00:35:28] Speaker 01: But even if there was some question as to whether the opinions are binding, in coastal states and tax analysts 1 and 2 and Schleffer, this court made clear that they didn't need to be binding as a formal matter for them to constitute working law. [00:35:38] Speaker 01: They needed to be held in high regard and generally followed. [00:35:41] Speaker 01: And that was sufficient in those cases. [00:35:42] Speaker 01: They didn't insist on binding. [00:35:44] Speaker 04: The only thing I can ask you about standing I'd like to give you an opportunity to address that because our case in physiology recognizes that there is a meaningful difference between the reading room provision FOIA and you know the provision for individual requests of information with respect to standing and that was even before trans union and then trans union says for informational injuries [00:36:06] Speaker 04: You need a downstream arm. [00:36:09] Speaker 04: And so here, um, your organization is trying to enforce the reading room provision. [00:36:15] Speaker 04: What is the particularized harm to your organization? [00:36:19] Speaker 04: How do you, how do you satisfy the concerns that were reflected both in prosology and in trans union? [00:36:24] Speaker 01: I think this question is effectively resolved by crew one discourse decision and crew one, and also the Supreme court's decision in Sears. [00:36:30] Speaker 01: Our client, the Campaign for Accountability, filed a request with the agency asking for the OLC's opinions retrospectively and prospectively. [00:36:39] Speaker 01: The OLC denied it, and we sued. [00:36:41] Speaker 04: That's the fact pattern under Crew 1 that this court said would allow a court to... Crew 1 was before both phrasology and trans-union, wasn't it? [00:36:53] Speaker 04: I think so. [00:36:54] Speaker 01: I don't know. [00:36:55] Speaker 01: I think trans-union was two years ago. [00:36:57] Speaker 01: Was that right? [00:36:58] Speaker 01: I don't remember the year of TransUnion. [00:37:00] Speaker 01: That may be right, but I think the standing analysis is still the same. [00:37:03] Speaker 01: We requested the records. [00:37:06] Speaker 01: FOIA has a judicial review provision that this court in Crew 1 said could be enforced. [00:37:10] Speaker 04: And the fact pattern of Sears, by the way, is- Have you requested the records under both A2 and A3, or just under the reading room provision? [00:37:17] Speaker 04: I don't think- The reading room provision is meaningfully different. [00:37:20] Speaker 01: I don't think the opinion identified a a three as the basis, but I'm not sure that matters. [00:37:27] Speaker 01: We requested the opinions. [00:37:29] Speaker 01: We were denied them. [00:37:30] Speaker 01: That's a informational harm that is informational harm under a three. [00:37:33] Speaker 04: If you want it in, why isn't an informational harm under a two, which is the provision that you're trying to you're trying to. [00:37:41] Speaker 04: You know, campaign for accountability is trying to get OLC to publish these things on their own, which is a general obligation that the agency has under FOIA. [00:37:51] Speaker 04: So to sue for that, there has to be some particularized harm. [00:37:55] Speaker 01: It's a harm because we want them in the future, and the agency has made clear in the future it will continue to treat the question of whether to publish them as entirely within its own discretion. [00:38:03] Speaker 01: That, by the way, was the fact pattern of Sears. [00:38:05] Speaker 01: A request was filed, and the court issued a ruling not under A3, but under A2A. [00:38:11] Speaker 01: I don't think there's any material distinction between the decision Sears and the way that we're proceeding here. [00:38:16] Speaker 01: But if you're troubled by that, you could treat our request as a request under A2 and then limit the relief if you want. [00:38:25] Speaker 01: I'm not sure it's a practical matter that will have any significant result. [00:38:30] Speaker 04: I don't think it would be open to us to treat it as a request under A3. [00:38:33] Speaker 01: Excuse me, A3. [00:38:33] Speaker 01: I meant to say A3. [00:38:35] Speaker 04: That wasn't the request that was made. [00:38:37] Speaker 01: The request was just made for opinions. [00:38:39] Speaker 01: I think that counts as a request under A3. [00:38:41] Speaker 01: We didn't identify a three is request, but there's no obligation to use magic words and filing for request with agencies. [00:38:48] Speaker 03: And the remedy you requested, was it just that it be released to you or that the agencies publish it as a. We ask that they be released to us and that the and that they also release indices to us. [00:38:57] Speaker 01: And that's the form of relief that this court and crew one said was. [00:39:00] Speaker 03: So you just asked for it to be released to you. [00:39:01] Speaker 03: So it seems that the injury is identical to if you had made an A3 request. [00:39:04] Speaker 03: You're just asking that the information be released to you. [00:39:06] Speaker 01: That's right. [00:39:07] Speaker 01: And I forget the year that Crew 1 was decided, but it's not available to us to ask for release of the public under the score's decision in Crew 1. [00:39:15] Speaker 04: Isn't the relief that you're asking for broader? [00:39:16] Speaker 04: I mean, you're saying you want forward-looking relief for OLC to make these categories of opinions available under the reading room provision. [00:39:25] Speaker 05: Yes, that's right. [00:39:25] Speaker 04: Which is different than an A3 request. [00:39:28] Speaker 04: That would be just to CFA. [00:39:32] Speaker 01: That's right. [00:39:32] Speaker 01: It's different than an A3 request. [00:39:34] Speaker 01: If you don't think we have standing to seek the perspective relief, [00:39:38] Speaker 01: then you could limit our relief to retrospective that would still have a significant effect. [00:39:42] Speaker 01: But I don't think there's any meaningful distinction between how we're proceeding and the path that the court laid out in Crew 1. [00:39:48] Speaker 01: And I don't think TransUnion calls standing in that context into question. [00:39:51] Speaker 01: Because we filed a request. [00:39:53] Speaker 01: There's no question that the OLC in the future is going to treat its opinions in the same way it is treating them now. [00:39:58] Speaker 01: And so we will continue to suffer the harm that we're suffering now, which is not getting records that we think we're statutorily entitled to. [00:40:07] Speaker 01: I may not have persuaded you. [00:40:08] Speaker 04: No, I'm just saying that's an A3 harm, though. [00:40:10] Speaker 04: That's not an A2 harm. [00:40:12] Speaker 04: A2 requires agencies to just make these things available. [00:40:16] Speaker 04: So it's reading room provision. [00:40:17] Speaker 01: I understand. [00:40:18] Speaker 01: And if the court wants to treat the request as one under A3 and limit the relief that we get to A3 relief for that reason, it would still be possible for the court to reach the legal questions that are up on appeal. [00:40:33] Speaker 02: Thank you. [00:40:35] Speaker 02: Can I ask on the? [00:40:36] Speaker 02: on the EFF applicability, there's [00:40:41] Speaker 02: this dynamic that you've outlined about a situation in which two agencies come in and want an opinion. [00:40:47] Speaker 02: And then the way you see it, there's nothing yet left to be done because the OSU issues an opinion. [00:40:52] Speaker 02: It's the referee. [00:40:53] Speaker 02: It decides the dispute. [00:40:54] Speaker 02: And then that opinion becomes operative by the way this plays out. [00:41:00] Speaker 02: Then one of the government's responses is, well, you could manufacture the same situation in EFF itself and have another agency come in and [00:41:10] Speaker 02: express that it has a contrary view and you just want that to be resolved. [00:41:13] Speaker 02: And would EFF have turned out differently if it had arisen in that context? [00:41:18] Speaker 01: I don't think the OLC would have issued an opinion in that context. [00:41:21] Speaker 01: The best practices memo makes very clear at page 300 of the joint appendix that the OLC doesn't issue opinions in abstract legal disputes. [00:41:29] Speaker 01: It wants essentially a case or controversy. [00:41:32] Speaker 01: And if you look at that description of when it issues opinions, it's effectively a case or controversy requirement for the OLC. [00:41:38] Speaker 01: But it is true that depending on context and opinion in one may or may not be working law or may or may not be a final opinion made in the adjudication of cases, [00:41:46] Speaker 01: But that is the lesson of this court's past cases. [00:41:48] Speaker 01: That context matters. [00:41:50] Speaker 01: In Tax Analyst 2, the court made very clear that an identical memorandum that travels upward versus horizontally might, in the former case, be a deliberative advice and might, in the latter case, be the working law of the agency that receives it. [00:42:04] Speaker 01: I don't think that's a problem. [00:42:05] Speaker 01: If the government were actually pointing to examples in the record, [00:42:13] Speaker 01: or had even tried to submit some under seal where their inter-agency dispute resolutions or opinions in categories two or three that bore the characteristics that we described but that were nonetheless deliberative, then I think they'd have an argument, but they haven't done that. [00:42:27] Speaker 01: Their only argument is that the OLC's conclusive resolution of a policy dispute or its establishment of a law that an agency will apply in an adjudication or its determination of what a nondiscretionary legal obligation means [00:42:41] Speaker 01: It's only argument is that those are all those are all deliberative because the OLC at the end of the day is a legal entity. [00:42:49] Speaker 01: But this court has already rejected that logic. [00:42:50] Speaker 01: And I don't think EFF could have undone the decades of discourse past precedent, recognizing that legal opinions can sometimes be the working law of the agencies that request them based on the circumstances of their solicitation. [00:43:03] Speaker 01: and their issuance. [00:43:04] Speaker 01: And that fundamentally is the rule that we're asking this court to apply, to recognize that context matters and to recognize that these three categories of opinions, when they're issued, there's no distance between the legal determinations made and the underlying law and policy of the agencies that solicit them. [00:43:19] Speaker 02: And it sounds to me from your explanation just now that you don't see a difference at the end of the day based on whether we view it as [00:43:31] Speaker 02: the applicability of the deliberative process privilege on one end or the applicability of the reading room provisions on the other end, because they ultimately turn on the same considerations anyway. [00:43:41] Speaker 01: I think that's right. [00:43:42] Speaker 01: I think [00:43:44] Speaker 01: I think the easiest way to resolve the first two categories is to apply the text of A2A instead of relying on amorphous considerations of deliberation. [00:43:52] Speaker 01: I think A2A is very clear as a textual matter. [00:43:55] Speaker 01: The Supreme Court interpreted it in Sears. [00:43:58] Speaker 01: And this court can just apply the text of A2A in resolving categories one and two and then rely on the court's observation in Sears that final opinions are effectively never going to be deliberative because those two [00:44:13] Speaker 01: you know, categories just don't overlap. [00:44:15] Speaker 01: I think for the third category, you could approach it in either way. [00:44:18] Speaker 01: The third category is the only one where you have to address the considerations from EFF because the argument we're making there is that the opinions issued in that category reflect a statement of policy. [00:44:32] Speaker 03: Which category? [00:44:32] Speaker 01: The third category, the opinions interpreting non-discretionary legal obligations. [00:44:38] Speaker 01: And our argument with respect to that category, again, is that when the OLC issues those decisions, it is deciding the underlying agency's policy because the legal obligation is nondiscretionary. [00:44:49] Speaker 01: There's no further work to be done before coming up with a policy. [00:44:53] Speaker 01: For that category, I think you do have to address EFF. [00:44:56] Speaker 01: But I think the category satisfies the requirements of EFF, again, because there's no distance between law and policy in that context. [00:45:05] Speaker 02: Do my colleagues have additional questions for you? [00:45:07] Speaker 02: OK. [00:45:07] Speaker 02: Thank you. [00:45:09] Speaker 02: we'll give you two minutes for rebuttal. [00:45:15] Speaker 00: Just three quick points, one general and two about specific categories. [00:45:18] Speaker 00: The general point is that ultimately what this court deemed conclusive in EFF is true of all opinions, which is where they flow. [00:45:27] Speaker 00: They flow from OLC to some agency that has [00:45:31] Speaker 00: that ultimately has policymaking authority. [00:45:33] Speaker 00: And that's true whether it's resolving a case, that's true regardless of the degree to which it constrains the agency's policy, the legal framework constrains the agency's policymaking discretion. [00:45:43] Speaker 00: That's just true across the board. [00:45:45] Speaker 00: And there's really no escaping that. [00:45:47] Speaker 00: The two specific points. [00:45:50] Speaker 00: Council asserted that we hadn't identified any opinions that resolve interagency disputes, but still leave policy making discretion. [00:45:57] Speaker 00: We did on page 20 of our response reply brief, where OLC advised that EPA had authority to assess civil penalties against federal agencies. [00:46:05] Speaker 00: EPA then could make a decision about whether it wanted to do that or not. [00:46:09] Speaker 00: So that wasn't a final decision. [00:46:11] Speaker 00: EPA still got to decide what it wanted to do. [00:46:13] Speaker 00: So that's just illustrative of the general problem here, which is that these [00:46:19] Speaker 00: These opinions go to agencies. [00:46:21] Speaker 00: They may leave the agency with more or less discretion at the end of the day. [00:46:25] Speaker 00: But ultimately, the agency has to do something and decide what to do. [00:46:28] Speaker 00: And that's the final decision that's not deliberative. [00:46:31] Speaker 00: And then finally, on the category of what happens if, as a practical matter, the legal [00:46:37] Speaker 00: decision leaves little or no room for the agency to make policy adjustments. [00:46:42] Speaker 00: I mean, that's Murphy. [00:46:43] Speaker 00: In Murphy, the general counsel of the army was deciding whether there was a binding contract or not and whether the agency should keep working on it. [00:46:51] Speaker 00: And this court said, it doesn't matter whether the general counsel, as a practical matter, was telling them something that they had to abide by because the ultimate policy decision was made by the policymaking official and not by the general counsel. [00:47:05] Speaker 00: So ultimately, all of the categories boil down to, this is legal advice. [00:47:10] Speaker 00: Somebody makes a policy decision. [00:47:11] Speaker 00: That policy decision is the final decision, and the legal advice is deliberative. [00:47:15] Speaker 02: Can I ask you, that isn't true in tax analysts? [00:47:20] Speaker 02: That same interplay? [00:47:22] Speaker 02: That the legal opinion that was sought is legal advice, and then somebody makes a decision based on that legal advice? [00:47:28] Speaker 00: Well, so in tax analysts, and obviously this court reviewed that in Electronic Frontier Foundation, but in tax analysts, the setup was, I mean, there were some different categories, but if I'm remembering correctly, the council's office, someone would say, I'm trying to decide this case and what legal rules should I [00:47:49] Speaker 00: apply in that case and was asking within the legal office of its own agency. [00:47:53] Speaker 00: And that legal office had authority to tell people, here are the legal rules to apply in your case. [00:47:58] Speaker 00: And so that was a directive within the agency of here's what you're supposed to do. [00:48:03] Speaker 00: If there is a directive within an agency about what you're supposed to do, that is the rules that govern the conduct of employees in that agency, that directive will be rendered by [00:48:13] Speaker 00: Officials in that agency who may have consulted OLC and may do something that's consistent with what OLC said, but the directive they're giving will be given by people within the agency and you know down to subordinates or horizontally within the agency, but. [00:48:29] Speaker 00: The point that this court made in Electronic Frontier Foundation is that that's not how OLC works. [00:48:35] Speaker 00: And you can't say that's not how OLC works when it's doing one thing. [00:48:38] Speaker 00: But none of the categories that the plaintiffs have identified here make any difference in that respect. [00:48:45] Speaker 00: So they're really just trying to re-litigate Electronic Frontier Foundation. [00:48:49] Speaker 02: It just seems to me then what's doing the work is not that it's legal advice. [00:48:52] Speaker 02: It's whether it's operating horizontally or vertically. [00:48:57] Speaker 00: I guess it's certainly not whether it's legal. [00:49:00] Speaker 00: It's whether it's advice. [00:49:02] Speaker 00: It's whether it's a directive to do something or whether it's advice. [00:49:05] Speaker 00: And if it's advice, even if it's advice that you will follow, it's still advice. [00:49:12] Speaker 02: In other words, it can only be a directive if it's vertical. [00:49:15] Speaker 02: Right. [00:49:15] Speaker 02: It can only be advice if it's horizontal, is the way you see it. [00:49:18] Speaker 00: I mean, I think that that's the way the court looked at it in electronic frontier foundation. [00:49:23] Speaker 00: I don't think this is a controversial point, though. [00:49:25] Speaker 00: If you have an agency general counsel's office, and there's some policymaker who's trying to decide whether to engage in a particular policy, and they say to the general counsel, is this lawful or not? [00:49:38] Speaker 00: And the general counsel says, no, not lawful. [00:49:40] Speaker 00: then the policymaker probably won't do it. [00:49:43] Speaker 00: It would be astonishing to say, that's no longer attorney-client privilege. [00:49:46] Speaker 00: That's no longer deliberative. [00:49:47] Speaker 00: That's a final decision. [00:49:48] Speaker 00: That's just classic legal advice. [00:49:50] Speaker 00: Whereas if someone goes to the counsel's office and says, how do you want me to decide this question? [00:49:57] Speaker 00: And the counsel's office says, here's how you decide the question, then that's directive. [00:50:01] Speaker 00: And OLC is similarly situated. [00:50:05] Speaker 02: Thank you. [00:50:06] Speaker 02: Thank you, Mr. Tenney. [00:50:07] Speaker 02: It occurs to me that there's a cross-appeal, so I think in fairness, Mr. Addo, you should get two minutes for a serve rebuttal if you'd like. [00:50:17] Speaker 02: Thank you, Your Honor. [00:50:20] Speaker 01: Just very briefly, Your Honor, it can't be the rule that because a downstream decision could be made that a policy decision that precedes a downstream decision [00:50:31] Speaker 01: is all of a sudden deliberative. [00:50:32] Speaker 01: That would allow the deliberative process privilege to swallow all of FOIA. [00:50:35] Speaker 01: And this court addressed that question in each of the past cases, Coastal States, Section 1-2, and Schleffer, and said, if the opinion is, at the moment of issuance, the working law of the agency, that's adequate. [00:50:48] Speaker 01: Future deliberations over future decisions. [00:50:50] Speaker 01: So for example, in the opinion that Mr. Tenney referred to, the EPA, the dispute in that case was whether the EPA's policy that it had legal authority to issue fines [00:51:00] Speaker 01: was correct or instead the DOD's policy that the EPA did not have that authority was correct. [00:51:05] Speaker 01: And the OLC said the EPA was correct. [00:51:08] Speaker 01: And so that then became the operative policy of both agencies. [00:51:11] Speaker 01: Of course, there are downstream decisions to be made following that policy. [00:51:14] Speaker 01: And those decisions might very well be deliberative. [00:51:16] Speaker 01: But the legal decision, the legal position of the agency was set at the moment that the OLC issued that opinion. [00:51:21] Speaker 01: And that's why that opinion and the others in the categories that we're seeking are either working law or final opinions upon their issuance. [00:51:30] Speaker 02: Thank you. [00:51:30] Speaker 02: Thank you, counsel. [00:51:31] Speaker 02: Thank you to both counsel. [00:51:33] Speaker 01: We'll take this case under submission.