TREVOR N. McFADDEN, United States District Judge.
In this suit, the Plaintiff Citizens for Responsibility and Ethics in Washington ("CREW") seeks a court order requiring the publication of "all existing and future... formal written opinions" issued by the Office of Legal Counsel ("OLC"), Compl. 8-9, a component of the U.S. Department of Justice that provides "the opinion of the Attorney General on questions of law" arising within the executive branch. 28 U.S.C. § 512. CREW contends that these documents are subject to the Freedom of Information Act's "reading room" provision, which requires that specific categories of records be affirmatively made "available for public inspection in an electronic format." 5 U.S.C. § 552(a)(2). But this claim fails as a matter of law, since at least some of the documents sought are subject to FOIA Exemption 5, which protects both the deliberative process privilege and the attorney-client privilege. Elec. Frontier Found. v. U.S. Dep't of Justice, 739 F.3d 1, 4 (D.C. Cir. 2014) ("EFF"). This well-settled law presents an obvious and insurmountable barrier to ordering the universal publication of OLC's formal written opinions. Accordingly, I will dismiss CREW's complaint for failure to state a claim upon which relief can be granted.
In 2013, CREW requested the same relief under the auspices of the Administrative Procedure Act (APA), but the District Court dismissed the claim for lack of jurisdiction, and the D.C. Circuit affirmed. Citizens for Responsibility & Ethics in Washington v. U.S. Dep't of Justice, 164 F.Supp.3d 145, 147 (D.D.C. 2016) ("CREW I"); Citizens for Responsibility & Ethics in Washington v. United States Dep't of Justice, 846 F.3d 1235 (D.C. Cir. 2017) ("CREW II"). Both decisions concluded that "Plaintiff ... filed its suit under the wrong statute," CREW I, 164 F.Supp.3d at 147, because the APA provides jurisdiction only when "there is no other adequate remedy in a court," 5 U.S.C. § 704, and "precedent establishes that a plaintiff in CREW's position may bring a FOIA claim to enforce the reading-room provision." CREW II, 846 F.3d at 1245.
CREW filed the instant suit in 2017, this time under FOIA.
As relief, CREW seeks a declaration that the DOJ has violated FOIA, orders requiring the DOJ to "make available to CREW for public inspection and copying on an ongoing basis all existing and future OLC formal written opinions" and indices thereof, and an award of attorneys' fees and costs. Compl. 8-9. The Government filed a motion to dismiss, contending that the complaint's request for all of OLC's formal, written opinions failed to state a claim under Fed. R. Civ. P. 12(b)(6), and that to the extent CREW "seeks to advance a different claim" for a sub-category of those opinions, that claim was "neither ripe nor adequately plead." Mem. In Support of Mot. Dismiss 8 (hereinafter "Mot. Dismiss").
"[A] complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). However, "a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)
CREW invokes FOIA's "reading room" provision, which provides as follows:
5 U.S.C. § 552(a)(2). By its terms, the entire Act — including the reading room provision — "does not apply" to nine specific exemption categories. 5 U.S.C. § 552(b)(1)-(9); NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 147-48, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975) ("if the memoranda... fall within one of the Act's exempt categories, our inquiry is at an end, for the Act `does not apply' to such documents.").
CREW's suit is premised on a universal claim: "all existing and future OLC formal written opinions" and indices thereof are subject to mandatory disclosure under 5 U.S.C. § 552(a)(2)). Compl. 8-9; id. ¶¶ 1, 27-28, 34.
In EFF, the D.C. Circuit confronted a FOIA request for a formal, written OLC opinion regarding certain FBI investigative techniques. EFF, 739 F.3d at 5.
Even if the deliberative process privilege did not apply, the attorney-client privilege would also preclude CREW's carte blanche access to OLC's formal written opinions. FOIA Exemption 5, which 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), also protects documents subject to attorney-client privilege. EFF, 739 F.3d at 4; New York Times Co. v. U.S. Dep't of Justice, 806 F.3d 682, 684 n. 1 (2d Cir. 2015). Attorney-client privilege applies equally to "confidential communications between Government officials and Government attorneys," just as it does outside the government context. United States v. Jicarilla Apache Nation, 564 U.S. 162, 170, 131 S.Ct. 2313, 180 L.Ed.2d 187 (2011). Accordingly, several courts have held that OLC opinions are protected by attorney-client privilege, since they embody confidential legal advice given by OLC to other components of the Executive Branch. Nat'l Sec. Counselors v. C.I.A., 960 F.Supp.2d 101, 196 (D.D.C. 2013); Am. Civil Liberties Union v. Dep't of Justice, 2011 WL 10657342 at *9 (D.D.C. Feb. 14, 2011), Citizens for Responsibility & Ethics in Washington v. Nat'l Archives & Records Admin., 583 F.Supp.2d 146, 165 (D.D.C. 2008). Given OLC's role as "the most significant centralized source of legal advice within the Executive Branch," CREW II, 846 F.3d at 1238 (quoting Trevor W. Morrison,
If CREW amends its complaint to allege that some specific subset of OLC's formal, written opinions are being unlawfully withheld, it could theoretically allege in adequate detail that certain OLC opinions are "final opinions ... made in the adjudication of cases" or are "statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register." See 5 U.S.C. § 552(a)(2)(A)-(B); see also Campaign for Accountability, 278 F.Supp.3d at 322, 2017 WL 4480828 at *14 ("in order to state a claim that OLC is violating the FOIA, CfA's complaint needs to identify an ascertainable set of OLC opinions that plausibly constitute the law or policy of the agency to which the opinion is addressed") (emphasis in original). If that day ever comes, CREW may be entitled to those opinions, as well as an index thereof. See 5 U.S.C. § 552(a)(2)(E). But since both the deliberative process privilege and the attorney-client privilege preclude CREW's requested relief under FOIA Exemption 5, I see no need to rule on other potential counter-arguments, including the statutory contention that OLC opinions are not subject to the terms of 5 U.S.C. § 552(a)(2), Mot. Dismiss 13-17, the potential applicability of FOIA's other eight exemptions, see 5 U.S.C.S 552(b)(1)-(9), and constitutional concerns that requiring OLC to publish its formal, written opinions would undermine the President's ability to "take Care that the Laws be faithfully executed," U.S. Const. art. II, § 3, and "require the Opinion, in writing, of the principal Officer in each of the executive Departments," id. art. II, § 2, cl. 1. Mot. Dismiss 24-27. The complaint, as currently drafted, fails to state a claim upon which relief can be granted.
Implicitly conceding that only some of OLC's formal written opinions are subject to disclosure, CREW seeks discovery to provide "a full record to evaluate the scope of DOJ's obligations under § 552(a)(2)," Opp. 10, arguing that "the important legal issues this suit raises cannot be resolved until CREW has obtained limited discovery." Opp. 3. But the possibility that some formal written OLC opinions are subject to disclosure cannot rescue a complaint that by its own terms seeks all such opinions. To avoid dismissal under Rule 12(b)(6), CREW must file a complaint — not proposed discovery — stating a plausible claim to relief. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937; E.E.O.C. v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997) ("In determining whether a complaint fails to state a claim, we may consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which we may take judicial notice."). Accordingly, CREW's request for limited discovery will be denied.
Because CREW has failed to state a claim upon which relief can be granted, I will grant the Government's motion to dismiss and deny CREW's request for limited discovery. In the order that follows, CREW will be given leave to file an amended complaint, if it so desires.