Appeals court rules surveillance legal opinion can stay secret

McClatchy Washington BureauJanuary 3, 2014 


The U.S. Court of Appeals for the D.C. Circuit, the E. Barrett Prettyman building - United States Courthouse in Washington D.C.


A secret legal opinion is going to stay secret, as an appeals court has rejected an Electronic Frontier Foundation bid to obtain an Office of Legal Counsel missive concerning electronic surveillance.

In a 20-page decision, the U.S. Court of Appeals for the District of Columbia Circuit agreed with a trial judge that the Office of Legal Counsel opinion in question was exempt from the Freedom of Information Act. The unanimous three-judge panel included an Obama administration appointee and the court's newest member, Judge Sri Srinivasan.

The OLC legal opinion concerns the FBI's use of so-called "national security letters." Dated Jan. 8, 2010, the opinion concluded that the Electronic Communications Privacy Act does not forbid electronic communications service providers, in certain circumstances, from disclosing certain call detail records to the FBI on a voluntary basis without legal process or a ualifying emergency.

The FBI, which had requested the OLC opinion, rejected the Electronic Frontier Foundation's FBI request on the grounds the opinion contained classified information and was part of the agency's deliberative process.

The appellate court agreed with the deliberative process exemption, concluding it didn't even need to consider the classified-information exemption.

"The District Court correctly concluded that the unclassified portions of the OLC Opinion could not be released without harming the deliberative processes of the government by chilling the candid and frank communications necessary for effective governmental decision-making," the court stated.


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