2013 01 04 NYT Court Backs Shielding of Legal Memo on Phone Records – NYTimes.com


Court Backs Shielding of Legal Memo on Phone Records

WASHINGTON — A federal appeals court on Friday ruled that the Obama administration may continue to withhold a Justice Department memorandum that apparently opened a loophole in laws protecting the privacy of consumer data.

The memo allows telephone companies to hand over customers’ calling records to the government without a subpoena or court order, even when there is no emergency, according to a 2010 Justice Department inspector general report. The details of the legal theory, and the circumstances in which it could be invoked, remain unclear.

The ruling by the United States Court of Appeals for the District of Columbia Circuit came down on the side of a broad conception of executive branch secrecy powers to shield the government’s interpretations of what the law permits it to do. The ruling may make it easier for the government to shield other memos by the department’s powerful Office of Legal Counsel, which provides binding legal advice to the executive branch, from disclosure under the Freedom of Information Act.

The document at issue is a classified memo signed by the Office of Legal Counsel on Jan. 8, 2010. A report later that year by the Justice Department’s inspector general at the time, Glenn A. Fine, disclosed the memo’s existence and its broad conclusion that telephone companies may voluntarily provide records to the government “without legal process or a qualifying emergency,” notwithstanding the Electronic Communications Privacy Act.

The Federal Bureau of Investigation had asked for the memo as part of an investigation by Mr. Fine into problems with the F.B.I.’s use of so-called exigent letters to obtain telephone and financial records. The report concluded that the bureau had obtained calling records for thousands of telephone accounts between 2003 and 2006 without following any legal procedures.

The bureau, which has abandoned exigent letters, said that it had not used the legal theory outlined in the memo when using them, and that it had no plans to use it in the future. But Mr. Fine warned that the existence of the Office of Legal Counsel’s theory created a “significant gap” in “accountability and oversight” and urged Congress to modify the statute. Lawmakers have not acted on that recommendation.

The Electronic Frontier Foundation filed a lawsuit in 2011 seeking to obtain the memo under the Freedom of Information Act. But a District Court judge ruled that the memo fell into an exception to that law covering materials developed when the executive branch is deliberating internally about what policy to select, and the appeals court agreed. That opinion was written by Judge Harry T. Edwards and joined by Judges David D. Sentelle and Sri Srinivasan.

The Office of Legal Counsel issues binding legal advice to the executive branch on whether proposed actions would be legal. If it says something is permitted, government officials who act on that advice are essentially immune from prosecution by the Justice Department. Its power to adopt secret legal theories has come under greater scrutiny since the terrorist attacks of Sept. 11, 2001, and the opinions it produced during the Bush administration that signed off on brutal questioning of detainees despite anti-torture laws and on warrantless wiretapping programs.

“Even if the O.L.C. opinion describes the legal parameters of what the F.B.I. is permitted to do, it does not state or determine the F.B.I.’s policy,” Judge Edwards wrote. “The F.B.I. was free to decline to adopt the investigative tactics deemed legally permissible in the O.L.C. opinion.”

As a result, he added, the Office of Legal Counsel memo did not amount to “working law” formally adopted by the F.B.I., and so was covered in its entirety by the exception. By the same legal reasoning, any memo from the office that is not formally adopted as policy by an agency — even by another branch of the Justice Department like the F.B.I. — would be exempt from disclosure.

“We are pleased with the decision,” said Andrew Ames, a Justice Department spokesman.

The Electronic Frontier Foundation had argued that because of the special role played by Office of Legal Counsel memos, they amounted to the government’s official “working law” and should be allowed to be disclosed.

David Sobel, a lawyer for the foundation, called the ruling “troubling” and said he hoped it would reinvigorate efforts among some lawmakers in Congress to open Office of Legal Counsel memos to greater scrutiny outside the executive branch. He said that because such memos establish the parameters within which an agency may operate, they constitute a body of “secret law” that the public has a right to know.

“I’m concerned about the way the court dealt with O.L.C.’s role within the executive branch,” he said. “It’s kind of hard to imagine how a different case in the D.C. Circuit is likely to have a different outcome in light of this opinion.”

Legal specialists said the ruling was in line with how other courts, notably the United States Court of Appeals for the Second Circuit, in New York, have dealt with Freedom of Information Act requests for Office of Legal Counsel memos in recent years. Still, the District of Columbia Circuit is particularly important because more than any other court, it oversees disputes involving the federal government.