March 22, 2015
By Facsimile: (202) 514-0563

Karl Remon Thompson

Principal Deputy Assistant Attorney General
Office of Legal Counsel

US. Department of Justice

950 Avenue, N.W.
Washington, DC. 20530

Dear Principal Deputy Assistant Attorney General Thompson:

Campaign for Accountability hereby requests that the Of?ce of Legal
Counsel (OLC) immediately comply with its obligations under 5 U.S.C. 552(a)(2) to
make available f0r public inspection and copying on an ongoing basis all unpublished
OLC opinions that provide controlling legal advice to executive branch agencies and a
general index of all such opinions OLC has issued. By failing to date to comply with
these legal obligations, OLC has created a body of secret law that contravenes the
congressional purpose behind 552(a)(2) and undermines our democratic system of
government.

Nearly three years ago, on behalf of another organization, I made a similar request
of then-Assistant Attorney General Virginia A. Seitz. My letter of July 3, 2013,1
explained the scope of the obligation 5 U.S.C. 552(a)(2) imposes on all executive
branch agencies, including the Department of Justice and its component OLC, to make
publicly available certain categories of records including, inter alia, ??nal opinions . . .
made in the adjudication of cases? and unpublished ?statements of policy and
interpretations which have been adopted by the Id. at (D) and (A). Yet then,
as now, OLC refused to comply with this statutory command.

My current request, at a minimum, encompasses the formal written opinions OLC
has issued and will issue using the process outlined in a July 16, 2010 memorandum to
OLC attorneys from then-Acting Assistant Attorney General David J. Barron.2 This is by
no means to suggest that these formal written opinions comprise the full body of final
opinions subject to 5 U.S.C. 552(a)(2). Indeed, as you acknowledged during an
American Bar Association conference last fall,

[t]here are a lot of different ways in which OLC gives
advice. A very small piece of that is writing formal
opinions. The vast majority of our advice is provided

 

1 For your convenience I am enclosing a copy of this letter as Exhibit A.

1 For your convenience I am enclosing a copy of this memorandum as Exhibit B.
1201 Connecticut Avenue, N.W. 0 Suite 300 0 Washington, D.C. 20036 0 (202) 780-5750



Karl Ramon Thompson
March 22, 2016
Page Two

informally is delivered orally or in emails. That is

still authoritative. It is still binding by custom and
practice in the executive branch. It?s the of?cial view of
the office. People are supposed to and do follow it.3

These OLC opinions, whether produced through more formal opinion writing
process or instead memorialized in emails and other forms of writing, function as binding
law on the executive branch. Accordingly, they must be made publicly available as either
??nal opinions . . . made in the adjudication of cases? or ?statements of policy and
interpretations which have been adopted by the 5 U.S.C. 552(a).

Despite the clarity of the legal obligations 5 U.S.C. 552(a) imposes and your
own recognition that OLC provides binding and authoritative legal advice that must be
followed, OLC has steadfastly refused requests that it make its written opinions publicly
available. A recent decision of US. District Court Judge Amir P. Mehta in CREW v. US.
Dep ?t of Justice. Civil No. 113-1291 (D.D.C. March 7, 2016), recognizes that the judicial
review provisions of the Freedom of Information Act confer jurisdiction on district courts
to hear suits challenging an agency?s failure to comply with 5 U.S.C. 552(a). While we
remain hopeful that OLC will immediately make the documents is requesting
publicly available as 552(a) requires, is prepared to seek relief from the courts to
ensure the public has access to this growing body of secret law.

Sincerely,

z-rllt/mw

Anne L. Weismnn
Executive Director

Encl.

 

3 See Josh Gerstein, Of?cial: FOIA Worries Damper: Requests for Formal Legal Opinions, Politico,
November 5, 2015, available 



EXHIBIT A

Case Document 8-2 Filed 11/13/13 of 3

 

 

 

 

 

 

 

1 - - 0&2!
I I I I .
REW cmzens for 
and etlucs was on
1400 Street N.W., Suite 450
Washington, D.C. 20005
Phone: 202-408-5565
Fax: 202-538-5020
FACSIMILE TRANSMITTAL SHEET

TO: FROM:

Virginia A. Seitz, Assismm Anomey Anne Weismnn

General -
COMPANY: DATE:

Office of Legal Counsel, US. Depmnem JULY 3, 2013

of Justice
RECIPIENTS FAX NUMBER:

PAGE 1 OF 3

202-514-0563

PHONE NUMBER: RE:
Please see enclosed letter



Pages Mamiued are privileged and con?dential.

 Case Document 8-2 Filed 11/13/13 Page 2 of 3

 citizens for responsibility
and ethics in washingtou

July 3, 2013
By Facsimile (202) 514-0563

Virginia A. Seitz

Assistant Attorney General
Of?ce of bagel Counsel

US. Department of Justice

950 Avenue, N.W.
Washington, DC. 20530

Dear Assistant Attorney General Seltz:

Citizens for Responsibility and Ethics in Washington (CREW) hereby requests that the
Of?ce of Legal Connsel (OLC) immediately comply with its obligation under 5 U.S.C. 
552(a)(2) to make available for public in3pection and cepying all OLC Opinions that are binding
on the executive brailch. failure to comply with this requiremsnt has led to the creation of
a body of secret law that undermines Our democratic system of government and con?icts with the
Department of Justice?s legal obligations.

By statute, U.S.C. 552(a)(2), Congress has imposed on all executive branch agencies
the requirement to ?make available for public inspection and copying? certain categories of
records, which include, inter alia, ??nal opinions . . . made in the adjudication of cases? and
?those of policy and interpretations which have been adopted by the agency and are
not published in the Federal Register.? Id. at (D) and (A). Unlike other provisions of the
Freedom of Information Act, agendas are subject to this obligation whether or not there is a
speci?c request for a record that falls within the covered mtegories.

As an executive branch agency, DUI, and its component OLC, are subject to these
requirements. OLC in particular creates documents that unquestionably fall within the categories
of records that must be made available for public insPection and copying. Speci?cally, OLC is
tasked with resolving inter-agency disputes, preparing the formal Opinions of the attorney
general, and endering opinions to the Attorney General and to the heads of the various
organizational units of the Department 011 questions of law arising in the administration of the
Department.? 28 CPR. 0.25(a) and see also Exec. Order No. 12, 146 14, 3 C.F.R. 
409 (1979). As OLC itself has acknowledged, the opinions OLC renders resolving these
disputes, like all other binding opinions OLC issues, ?may effectively be the ?nal word on
controlling law.? Memorandum ?'oru, David Barron, Acting Assistant Attorney General, Of?ce
of Legal Counsel, US. Department of Justice, for Attorneys of the Of?ce 1 (July 16, 2010)
(Baron Memo). See also U.S. Department of Justice, O?'ice oflfegal Counsel (March 2013),

1400 Street, NW. Suite 450. Washington, 0.0. 20005 202.408.5555phone 202.588.5020 tax I 
. . 

Case Document 8-2 Filed 11/13/13 Page 3 of 3

Assistant Attorney General Seitz
July 3, 2013
Page Two

ht tice. ov.o c. OLC opinions are considered stare decisis within the executive
branch, partiCularly because the vast majority of executive branch legal issues never reach a court
for resolution. Baron Memo at 2.

These OLC opinions, like the attorney general Opinions that preceded thorn,l function as
binding law on the executive branch. As a result, they constitute either ??nal opinions . . . made
in the adjudication of Games,? or ?statements of policy and interpretations which have been
adopted by the agency and are not published in the Federal Register." 5 U.S.C. 552(a).
According, OLC is subject to the statutory mandate to make them available for public in8pecti0n
and copying.

Despite this clear mandate, however, OLC has failed to comply with this requirement
since receiving the delegated authority from the attorney general to issue binding Opinions.
Dating ba6k to at least 1840, compilations of attorney general opinions were published and made
available to the public. Since taking over this function, OLC has published some of its Opinions,
but continues to withhold a signi?cant number from public view. For ample, the ?rst volume
of OLC opinions published in 1980 included ?73 opinions, which OLC estimated to constitute
approximately one-quarter of the written legal Opinions prepared by the of?ce in 1977.
Similarly, an analysis by the Sunlight Foundation in 2012 concluded OLC had withheld from
Online publication 39 percent of the 509 identi?able OLC Opinions issoed between 1998 and
2012. Because DOJ has never made public the exact number of Opinions OLC has issued, it is
impossible for the public to know precisely how many Opinions exist but have yet to be released.
This evidence, however, certainly makes clear a signi?cant number of OLC opinions have not
been made available for public inspection and copying, contrary to the requirements of 5 U.S.C.
552(a).

Accordingly, OLC should immediately begin the process of disdosing all of its opinions,
beginning with those issued in the last 20 years, which are likely to be of greatest public interest.
If OLC continues to refuse to comply with its legal obligations, we will seek relief from the
courts to ensure the public has access to this growing body of Secret law.

Very truly ours,
Anne L. Weisrnann
Chief Counsel

 

The authority conferred on the attorney general by the Judiciary Act of 1789, ch. 20, 
35, 1 Stat. 73, 93, to render Opinions on questions of law when required by the president or upon
request from executive branch agencies was delegated to OLC in 1950.

EXHIBIT 

Document 19-4 Filed 10/20/14 Page 1 of 6
US. Department of Justice

 

Of?ce of Legal Counsel

 

Office of the Assistant Attemey General Washington, D. C. 20530
July 16, 2010

MEMORANDUM FOR ATTORNEYS OF THE OFFICE
Re: Best Practices for OLC Legal Advice and Written Opinions?

By delegation, the Of?ce of Legal Counsel (OLC) exercises the Attorney General?s
authority under the Judiciary Act of 1789 to provide the President and executive agencies with
advice on questions of law. core function, pursuant to the Attorney General?s delegation,
is to provide controlling advice to Executive Branch of?cials on questions of law that are
centrally important to the functioning of the Federal Government. In performing this function,
OLC helps the President ful?ll his or her constitutional duties to preserve, protect, and defend
the Constitution, and to ?take Care that the Laws be faithfully executed.? It is thus imperative
that the Of?ce?s advice be clear, accurate, thoroughly researched, and soundly reasoned. The
value of OLC advice depends upon the strength of its analysis. OLC must always give candid,
independent, and principled advice?even when that advice is inconsistent with the aims of
policymakers. This memorandum reaf?rms the longstanding principles that have guided and
will continue to guide OLC attorneys in all of their work, and then addresses the best practices
OLC attorneys should follow in providing one particularly important form of controlling legal
advice the Of?ce conveys: formal written opinions.

I. Guiding Principles

Certain fundamental principles guide all aspects of the Of?ce?s work. As noted above,
central function is to provide, pursuant to the Attorney General?s delegation, controlling
legal advice to Executive Branch of?cials in furtherance of the President?s constitutional duties
to preserve, protect, and defend the Constitution, and to ?take Care that the Laws be faithfully
executed.? To ful?ll this ?lnction, OLC must provide advice based on its best understanding of
what the law requires?not simply an advocate?s defense of the contemplated action or position
proposed by an agency or the Administration. Thus, in rendering legal advice, OLC seeks to
provide an accurate and honest appraisal of applicable law, even if that appraisal will constrain
the Administration?s or an agency?s pursuit of desired practices or policy objectives. This
practice is critically important to the O?ice?s effective performance of its assigned role,
particularly because it is frequently asked to opine on issues of ?rst impression that are unlikely
to be resolved by the courts??a circumstance in which advice may effectively be the ?nal
word on the controlling law.

 

This memorandum updates a prior memorandum, ?Best Practices for OLC Opinions,? issued May 16, 2005.

Case Document 19-4 Filed 10/20/14 Page 2 of 6

In providing advice, the Of?ce should focus intensively on the central issues raised by a
request and avoid addressing issues not squarely presented by the question before it. As much as
possible, the Of?ce should be attentive to the particular facts and circumstances at issue in the
request, and should avoid issuing advice on abstract questions that lack the concrete grounding
that can help focus legal analysis. And regardless of the O?ce?s ultimate legal conclusions, it
should strive to ensure that it candidly and fairly addresses the full range of relevant legal
sources and signi?cant arguments on all sides of a question. To be sure, the Of?ce often
operates under severe time constraints in providing advice. In such instances, the Of?ce?should
make clear when it needs additional time to permit proper and thorough review of the relevant
issues. If additional time is not available, the Of?ce should make clear that its advice has been
given with only limited time for review, and thus that more thorough consideration of the issue
has not been possible.

On any issue involving a constitutional question, analysis should focus on
traditional sources of constitutional meaning, including the text of the Constitution, the historical
record illuminating the text?s meaning, the Constitution?s structure and purpose, and judicial and
Executive Branch precedents interpreting relevant constitutional provisions. Particularly where
the question relates to the authorities of the President or other executive of?cers or the allocation
of powers between the Branches of the Government, precedent and historical practice are often
of special relevance. On other questions of interpretation, analysis should be guided by
the texts of the relevant documents, and should use traditional tools of construction in
interpreting those texts. Because OLC is part of the Executive Branch, its analyses may also
re?ect the institutional traditions and competencies of that branch of the Government. For
example, OLC opinions should consider and ordinarily give great weight to any relevant past
Opinions of Attorneys General and the Of?ce. The Of?ce should not depart from such
past decisions, particularly where they directly address and decide a point in question, but as
with any system of precedent, past decisions may be subject to reconsideration and withdrawal in
appropriate cases and through processes.

Finally, analyses may appropriately re?ect the fact that its responsibilities also
include facilitating the work of the Executive Branch and the objectives of the President,
consistent with the law. As a result, unlike a court, OLC will, where possible and appropriate,
seek to recommend lawful alternatives to Executive Branch proposals that it decides would be
unlawful. Notwithstanding this aspect of mission, however, its legal analyses should
always be principled, forthright, as thorough as time permits, and not designed merely to
advance the policy preferences of the President or other of?cials.

II. Opinion Preparation

While the Of?ce frequently conveys its controlling legal advice in less formal ways,
including through oral presentations and by e-mail, the best practices for preparing the Of?ce?s
formal written opinions merit particular attention. These opinions take the form of signed
memoranda, issued to an Executive Branch of?cial who has requested the Of?ce?s opinion.

A. Evaluating opinion requests. Each opinion request is assigned initially to at least
one Deputy Assistant Attorney General and one Attomey-Adviser, who will review the question

Case Document 19-4 Filed 10/20/14 Page 3 of 6

presented and any relevant primary materials, prior OLC opinions, and leading cases to
determine preliminarin whether the question is appropriate for OLC advice and whether it
appears to merit a signed written opinion. The legal question presented should be focused and
concrete; OLC generally avoids providing a general survey of an area of law or issuing broad,
abstract legal opinions. There should also be a practical need for the written opinion; OLC
should avoid giving unnecessary advice, such as where it appears that policymakers are likely to
move in a different direction. A written opinion is most likely to be necessary when the legal
question is the subject of a concrete and ongoing dispute between two or more executive
agencies. If we are asked to provide an opinion to an executive agency the head of which does
not serve at the pleasure of the President g. an agency head subject to a ?for cause" removal
restriction), our practice is to issue our opinion only if we have received in writing from that
agency an agreement that it will conform its conduct to our conclusion. As a prudential matter,
OLC generally avoids opining on questions likely to arise in pending or imminent litigation
involving the United States as a party (although the Of?ce may provide assistance to Justice
Department divisions engaged in ongoing litigation). Finally, the opinions of the Of?ce should
address legal questions prospectively; OLC avoids opining on the legality of past conduct
(though from time to time we may issue prospective opinions that con?rm or memorialize past
advice or that necessarily bear on past conduct in addressing an ongoing legal issue).

B. Soliciting the views of interested agencies. Before we proceed with an opinion, our
general practice is to ask the requesting agency for a detailed memorandum setting forth the
agency?s own analysis of the question; in many cases, we will have preliminary discussions with
the requesting agency before it submits a formal opinion request to OLC, and the agency will be
able to provide its analysis along with the opinion request. (A detailed analysis is not required
when the request comes from the Counsel to the President, the Attorney General, or one of the
other senior management of?ces of the Department of Justice.) In the case of an interagency
dispute, we will ask each side to submit such a memorandum. We expect the agencies on each
side of a dispute to share their memoranda with the other side, or permit us to share them, so that
we may have the bene?t of reply comments, when necessary. When appropriate and helpful, and
consistent with the con?dentiality interests of the requesting agency, we will also solicit the
views of other agencies not directly involved in the Opinion request that have subject-matter
expertise or a special interest in the question presented. We will not, however, circulate a copy
of an opinion request to third-party agencies without the prior consent of the requesting agency.

C. Researching, outlining, and drafting. A written OLC opinion is the product of a
careful and deliberate process. After reviewing agency submissions and relevant primary
materials, including prior OLC opinions and leading judicial decisions, the Deputy and Attomey-
Adviser should meet to map out a plan for researching the issues and preparing an outline and
?rst draft of the opinion. The Deputy and Attomey-Adviser should set target deadlines for each
step in the process and should meet regularly to review progress on the opinion. Consultation
with others in the Of?ce is encouraged, as are meetings, as needed, with other Deputies and the
Assistant Attorney General (AAG). An early ?rst draft often will help identify weaknesses or
holes in the analysis requiring greater attention than initially anticipated. As work on the opinion
progresses, it will generally be useful for the Deputy and the AttorneyuAdviser to meet from time
to time with the AAG to discuss the status and direction of the draft opinion.

Case Document 19?4 Filed 10/20/14 Page 4 of 6

The Office must strive in our opinions for clear and concise analysis and a balanced
presentation of arguments on each side of an issue. If the opinion resolves an issue in dispute
between executive agencies, we should take care to consider fully and address impartially the
points raised on both sides. In doing so, we generally avoid characterizing agencies with
differing views as the ?prevailing? and ?losing? parties. obligation is to provide its view
of the correct answer on the law, taking into account all reasonable counterarguments, whether
provided by an agency or not.

D. Review of draft opinions. Before an OLC opinion is signed it undergoes rigorous
review within OLC. When the primary Deputy and the Attorney?Adviser responsible for the
opinion are satis?ed that the draft opinion is ready for secondary review, they should provide the
draft opinion to a second Deputy for review. Along with the draft opinion, the Attorney-Adviser
should provide to the second Deputy copies of any key materials, including statutes, regulations,
important cases, relevant prior OLC opinions, and the views memoranda received from
interested agencies. Once the second Deputy review is complete and the second Deputy?s
comments and proposed edits have been addressed, the primary Deputy should circulate the draft
opinion for ?nal review by the AAG, the remaining Deputies (though it is not necessary in each
case for each of them to review an opinion), and any other attorneys within the Of?ce with
relevant expertise.

Because OLC issues opinions pursuant to the Attorney General?s delegated authority, the
Of?ce keeps the Office of the Attorney General and the Office of the Deputy Attorney General
apprised of its work through regular meetings and other communications. This practice ensures
that the leadership of?ces are kept informed about work, and also permits OLC to bene?t
from suggestions about additional interests OLC should consider or views OLC should solicit
before ?nalizing its opinions, which are nevertheless based on its own independent analysis and
judgment. The Office also keeps the Of?ce of the Counsel to the President appropriately
apprised of its work.

Consistent with its tradition of providing advice that re?ects its own independent
judgment, OLC does not ordinarily circulate draft opinions outside the Of?ce. However, as part
of our process, we may share an aspect of a draft opinion?s analysis with the requestor or others
who will be affected by the opinion, particularly when their submissions have not addressed
issues that arise in the draft. In some other cases, OLC may share the substance of an entire draft
Opinion or the opinion itself within the Department of Justice or with others, primarily to ensure
that the opinion does not misstate any facts or legal points of interest.

E. Finalizing opinions. Once all substantive work on an opinion is complete, it must
undergo a thorough cite?check by our paralegal staff to ensure that all citations are accurate and
that the opinion is consistent with the Of?ce?s rules of style. After all cite-checking changes
have been approved and implemented, the ?nal opinion should be printed on bond paper for
signature. Each opinion ready for signature should include a completed opinion control sheet
signed by the primary and secondary Deputies and the Attomey-Adviser. If the opinion is
unclassi?ed, after it is signed and issued to the requesting agency it must be loaded into our
ISYS database and included in the Of?ce?s unclassi?ed Day Books. A separate ?le containing a
copy of the signed opinion, the opinion control sheet, and copies of key materials not readily

Case Document 19-4 Filed 10/20/14 Page 5 of 6

available, such as the original opinion request, the views memoranda of interested agencies, and
obscure sources cited in the opinion, should also be retained in our ?les for future reference.

Opinion Publication and Other Public Disclosure

Pursuant to Executive Order 12146 and directives from the Attorney General, OLC has a
longstanding internal process in place for regular consideration and selection of signi?cant
opinions for of?cial publication. At the ?rst stage of the process, the attorneys who have worked
on an opinion and the front-of?ce personnel who have reviewed it are asked for a
recommendation about whether the opinion should be published. After these recommendations
are collected, the opinion is forwarded to an internal publication review committee, made up of
attorneys from the front of?ce, as well as at least one career attorney. If the committee makes a
preliminary judgment that the opinion should be published, the opinion is circulated to the
requesting Executive Branch of?cial or agency and any other agencies that have interests that
might be affected by publication, to solicit their views on whether there are reasons why the
opinion should not be published. Taking this input into account, the publication committee then
makes a ?nal judgment about whether the Of?ce should publish the opinion. After the Of?ce
makes a ?nal decision to publish an opinion, the opinion is rechecked and reformatted for online
publication; a headnote is prepared and added to the opinion; and the opinion is posted to the
Department of Justice Web site at All opinions posted on the
Web site as published opinions of the Of?ce are eventually published in hardcover bound
volumes.

In deciding whether an opinion is signi?cant enough to merit publication, the Of?ce
considers such factors as the potential importance of the opinion to other agencies or of?cials in
the Executive Branch; the likelihood that similar questions may arise in the future; the historical
importance of the opinion or the context in which it arose; and the potential signi?cance of the
opinion to the Of?ce?s overall jurisprudence. In applying these factors, the Of?ce operates from
the presumption that it should make its signi?cant opinions fully and available to the
public. This presumption furthers the interests of Executive Branch transparency, thereby
contributing to accountability and effective government, and promoting public con?dence in the
legality of government action. Timely publication of OLC opinions is especially important
where the Of?ce 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 bene?t from understanding the
Executive?s 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 President?s obligation to take care that the laws,
including the Constitution, are faithfully executed.

At the same time, countervailing considerations may lead the Office to conclude that it
would be improper or inadvisable to publish an opinion that would otherwise merit publication.
For example, OLC will decline to publish an opinion when disclosure would reveal classi?ed or
other sensitive information relating to national security. (Deciassi?cation decisions are made by
the classifying agency, not OLC.) Similarly, OLC will decline to publish an opinion if doing so
would interfere with federal law enforcement efforts or is prohibited by law. OLC will also

Case Document 19-4 Filed 10/20/14 Page 6 of 6

decline to publish opinions when doing so is necessary to preserve internal Executive Branch
deliberative processes or protect the con?dentiality of information covered by the attorney-client
relationship between OLC and other executive of?ces. The President and other Executive
Branch of?cials, like other public- and private-sector clients, sometimes depend upon the
con?dentiality of legal advice in order to ful?ll their duties effectively. An example is when an
agency requests advice regarding a proposed course of action, the Of?ce concludes it is legally
impermissible, and the action is therefore not taken. If OLC routinely published its advice
concerning all contemplated actions of uncertain legality, Executive Branch of?cials would be
reluctant to seek OLC advice in the early stages of policy formulation?a result that would
undermine rule?of-law interests. Some OLC opinions also may concern issues that are of little
interest to the public or others besides the requesting agency. practice of circulating
opinions selected for publication to the requesting Executive Branch of?cial or agency and any
other agencies that have interests that might be affected by publication helps ensure that the
Of?ce is aware of these competing considerations. In cases where delaying publication may be
sufficient to address any of these concerns, OLC will reconsider the publication decision at an
appropriate time.

OLC also receives a large number of Freedom of Information Act (F OIA) requests for its
unpublished legal opinions. The volume of such requests has increased substantially in recent
years, particularly with respect to opinions concerning national security matters. By de?nition,
these requests seek disclosure of documents that the O?ce has not yet chosen to release pursuant
to its own internal publication procedures. In responding to these requests, OLC is guided by
President Obama?s January 21, 2009 FOIA Memorandum and Attorney General Holder?s March
19, 2009 FOIA memorandum. As the Attorney General?s memorandum observes, various FOIA
exemptions protect ?national security, . . . privileged records, and law enforcement interests.?
OLC will consult with relevant agencies in determining whether particular requested documents
fall within and should be withheld under any applicable FOIA exemptions. If a requested
document does not fall within an exemption, OLC will disclose it In addition, OLC
will consider disclosing documents even if they technically fall within the scope of a FOIA
exemption. As the Attorney General also stated in his March 19, 2009 memorandum, ?an
agency should not withhold information simply because it may do so legally.? In particular,
consistent with President Obama?s directions, the Of?ce will not withhold an opinion merely to
avoid embarrassment to the Of?ce or to individual of?cials, to hide possible errors in legal
reasoning, or ?because of speculative or abstract fears."

OLC has a unique mission, and a long-established tradition?sustained across many
administrations?as to how. its work should be canied out. The Of?ce depends not only upon its
leadership but also upon each of its attorneys to ensure that this tradition continues.

are

David [Barron
Acting Assistant Attorney General