The Justice Department is not obligated to release a legal opinion it prepared regarding the Federal Bureau of Investigation's surveillance authorities, even though an FBI official referred to the memo while defending the agency at a public Congressional hearing, a federal appeals court ruled Friday.
The unanimous ruling from a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit strengthens the almost unlimited discretion the Justice Department enjoys in deciding which Office of Legal Counsel opinions to make public and which to keep under wraps.
Judge Harry Edwards, writing for Judges Sri Srinivasan and David Sentelle, found that the OLC opinion was not binding on the FBI—even though it is virtually unheard of for an executive branch agency to defy an OLC opinion, especially an agency also part of the Justice Department.
"Because OLC cannot speak authoritatively on the FBI’s policy, the OLC Opinion differs from memoranda we have found to constitute the 'working law” of an agency," Edwards wrote, rejecting arguments from the Electronic Frontier Foundation. "OLC is not authorized to make decisions about the FBI’s investigative policy, so the OLC Opinion cannot be an authoritative statement of the agency’s policy."