OLC responds to FOIA request about NDAA memos

April 14, 2013

On March 29, 2013, the Office of Legal Counsel (OLC) responded to our April 23, 2012 FOIA request seeking legal memos regarding the Obama administration’s interpretation of its powers under the 2012 National Defense Authorization Act (NDAA).

Sections of the 2012 NDAA contain military detention provisions that have raised controversy and questions about their scope – including their possible application within the United States.

Public Record Media (PRM)’s April, 2012 FOIA request is the second that we’ve submitted to OLC regarding matters of indefinite military detention within the United States. (NOTE – In the months since we filed our requests, Congress passed the 2013 NDAA, which included language that bears on the detention provisions of the 2012 law.)

Domestic detention request
In January of 2012, PRM filed a FOIA request with OLC seeking legal memos relating to how the Obama administration viewed its domestic detention authorities (including those authorized by Congress, as well the President’s own, plenary powers.) The request also sought memos that examined the ways in which the 2012 NDAA impacted the Posse Comitatus Act – the post-Civil War law that limits the ability of the U.S. military to participate in civilian law enforcement. The date range of the request ran from January 1, 2009, to January 1, 2012.

On February 22, 2012, the OLC responded to this request by acknowledging the existence of 14 responsive documents. OLC denied access to all of them under FOIA Exemption 5, which protects documents that are “deliberative in nature,” or which contain attorney-client correspondence.

While courts have often give agencies wide berth to withhold records under Exemption 5, FOIA case law has also generally held that documents that are “post-decisional” in nature, or that constitute “final determinations of policy” cannot be protected by Exemption 5, and must be disclosed to requesters.

NDAA request
In April of 2013, PRM sent a re-formulated FOIA request to OLC, seeking legal memos regarding domestic detention that were all specifically tied to the 2012 NDAA, and which expressly constituted “final determinations of policy.” The date range of the request was open-ended.

By January of 2013, OLC had not substantively responded to our request, other than to acknowledge receipt of the request itself, and to note its inability to process the request within the 20-day statutory time frame. PRM subsequently filed an administrative appeal with the Department of Justice’s Office of Information Policy (OIP), seeking a response.

On March 29, OLC issued a response to PRM’s reformulated request. The agency’s response indicated that OLC had identified five responsive documents, but that four were being withheld under FOIA Exemption 5, since they were “not appropriate for discretionary release.” OLC also stated that one document was being forwarded to OIP for a “direct response.” OIP is the office where PRM filed its administrative appeal in this matter. As of the date of this writing, the Office of Information Policy has not yet issued a substantive response to that appeal.

Per the terms of PRM’s second FOIA request, it is reasonable to assume that all four of the documents being withheld by OLC are “final determinations” of government policy – documents that are generally difficult to withhold under the fifth exemption to the FOIA. Watch this space for more news on PRM’s follow-up on this matter.