SUNLIGHT Act of 2019

I 116TH CONGRESS 1ST SESSION H. R. 4556 To provide for the publication of OLC opinions, and for other purposes. IN THE HOUSE OF REPRESENTATIVES SEPTEMBER 27, 2019 Mr. CARTWRIGHT (for himself, Mr. QUIGLEY, Ms. LOFGREN, Mr. RASKIN, Mrs. DAVIS of California, Mr. CLAY, Mr. VARGAS, Mr. JOHNSON of Geor- gia, Mr. CA´RDENAS, Ms. HILL of California, Mr. CARSON of Indiana, Ms. NORTON, Ms. TLAIB, and Mr. BLUMENAUER) introduced the following bill; which was referred to the Committee on the Judiciary A BILL To provide for the publication of OLC opinions, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘See UNdisclosed Legal 4 Interpretations and Get Honest Transparency Act of 5 2019’’ or as the ‘‘SUNLIGHT Act of 2019’’. 6 VerDate Sep 11 2014 23:31 Oct 02, 2019 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H4556.IH H4556 pamtmann on DSKBC07HB2PROD with BILLS 2 •HR 4556 IH SEC. 2. SCHEDULE OF PUBLICATION FOR FINAL OLC OPIN- 1 IONS. 2 Each final opinion issued by the Office of Legal 3 Counsel must be made publicly available in its entirety as 4 soon as is practicable, but— 5 (1) not later than 30 days after the opinion is 6 issued or updated if such action takes place on or 7 after the date of enactment of this Act; 8 (2) not later than 1 year after the date of en- 9 actment of this Act for an opinion issued on or after 10 January 20, 1993; 11 (3) not later than 2 years after the date of en- 12 actment of this Act for an opinion issued on or after 13 January 20, 1981 and before or on January 19, 14 1993; 15 (4) not later than 3 years after the date of en- 16 actment of this Act for an opinion issued on or after 17 January 20, 1969 and before or on January 19, 18 1981; and 19 (5) not later than 4 years after the date of en- 20 actment of this Act for all other opinions. 21 SEC. 3. EXCEPTIONS AND LIMITATION ON PUBLIC AVAIL- 22 ABILITY OF FINAL OLC OPINIONS. 23 (a) IN GENERAL.—A final OLC opinion or part 24 thereof may be withheld only to the extent— 25 (1) information contained in the opinion was— 26 VerDate Sep 11 2014 23:31 Oct 02, 2019 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H4556.IH H4556 pamtmann on DSKBC07HB2PROD with BILLS 3 •HR 4556 IH (A) specifically authorized to be kept se- 1 cret, under criteria established by an Executive 2 order, in the interest of national defense or for- 3 eign policy; 4 (B) in fact properly classified, including all 5 procedural and marking requirements, pursuant 6 to such Executive order; 7 (C) the Attorney General determines that 8 the national defense or foreign policy interests 9 protected outweigh the public’s interest in ac- 10 cess to the information; and 11 (D) has been put through declassification 12 review within the past two years; 13 (2) information contained in the opinion relates 14 to the appointment of a specific individual not con- 15 firmed to Federal office; 16 (3) information contained in the opinion is spe- 17 cifically exempted from disclosure by statute (other 18 than sections 552 and 552b of title 5, United States 19 Code), provided that such statute— 20 (A) requires that the material be withheld 21 in such a manner as to leave no discretion on 22 the issue; or 23 VerDate Sep 11 2014 23:31 Oct 02, 2019 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H4556.IH H4556 pamtmann on DSKBC07HB2PROD with BILLS 4 •HR 4556 IH (B) establishes particular criteria for with- 1 holding or refers to particular types of material 2 to be withheld; 3 (4) information in the opinion includes trade se- 4 crets and commercial or financial information ob- 5 tained from a person and privileged or confidential 6 whose disclosure would likely cause substantial harm 7 to the competitive position of the person from whom 8 the information was obtained; 9 (5) the President, in his or her sole and non- 10 delegable determination, formally and personally 11 claims in writing that executive privilege prevents 12 the release of the information and disclosure would 13 cause specific identifiable harm to an interest pro- 14 tected by an exception or the disclosure is prohibited 15 by law; or 16 (6) information in the opinion includes per- 17 sonnel and medical files and similar files the disclo- 18 sure of which would constitute a clearly unwarranted 19 invasion of personal privacy. 20 (b) DETERMINATION TO WITHHOLD.—Any deter- 21 mination under this section to withhold information con- 22 tained in a final OLC opinion must be made by the Attor- 23 ney General or a designee of the Attorney General. The 24 determination shall be— 25 VerDate Sep 11 2014 23:31 Oct 02, 2019 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H4556.IH H4556 pamtmann on DSKBC07HB2PROD with BILLS 5 •HR 4556 IH (1) in writing; 1 (2) made available to the public within the 2 same timeframe as is required of a formal OLC 3 opinion; 4 (3) sufficiently detailed as to inform the public 5 of what kind of information is being withheld and 6 the reason therefore; and 7 (4) effective only for a period of 3 years, sub- 8 ject to review and reissuance, with each reissuance 9 made available to the public. 10 (c) FINAL OPINIONS.—For final OLC opinions for 11 which the text is withheld in full or in substantial part, 12 a detailed unclassified summary of the opinion must be 13 made available to the public, in the same timeframe as 14 required of the final OLC opinion, that conveys the es- 15 sence of the opinion, including any interpretations of a 16 statute, the Constitution, or other legal authority. A nota- 17 tion must be included in any published list of OLC opin- 18 ions regarding the extent of the withholdings. 19 (d) NO LIMITATION ON RELIEF.—A decision by the 20 Attorney General to release or withhold information pur- 21 suant to this Act shall not preclude any action or relief 22 conferred by statutory or regulatory regime that empowers 23 any person to request or demand the release of informa- 24 tion. 25 VerDate Sep 11 2014 23:31 Oct 02, 2019 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H4556.IH H4556 pamtmann on DSKBC07HB2PROD with BILLS 6 •HR 4556 IH (e) REASONABLY SEGREGABLE PORTIONS OF OPIN- 1 IONS TO BE PUBLISHED.—Any reasonably segregable 2 portion of an opinion shall be provided after withholding 3 of the portions which are exempt under this subsection. 4 The amount of information withheld, and the exemption 5 under which the withholding is made, shall be indicated 6 on the released portion of the opinion, unless including 7 that indication would harm an interest protected by the 8 exemption in this subsection under which the withholding 9 is made. If technically feasible, the amount of the informa- 10 tion withheld, and the exemption under which the with- 11 holding is made, shall be indicated at the place in the opin- 12 ion where such withholding is made. 13 SEC. 4. METHOD OF PUBLICATION. 14 The Attorney General shall publish each final OLC 15 opinion to the extent the law permits, including by pub- 16 lishing the opinions on a publicly accessible website that— 17 (1) with respect to each opinion— 18 (A) contains an electronic copy of the opin- 19 ion, including any transmittal letter associated 20 with the opinion, in an open format that is plat- 21 form independent and that is available to the 22 public without restrictions; 23 VerDate Sep 11 2014 23:31 Oct 02, 2019 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H4556.IH H4556 pamtmann on DSKBC07HB2PROD with BILLS 7 •HR 4556 IH (B) provides the public the ability to re- 1 trieve an opinion, to the extent practicable, 2 through searches based on— 3 (i) the title of the opinion; 4 (ii) the date of publication or revision; 5 or 6 (iii) the full text of the opinion; 7 (C) identifies the time and date when the 8 opinion was required to be published, and when 9 the opinion was transmitted for publication; 10 and 11 (D) provides a permanent means of access- 12 ing the opinion electronically; 13 (2) includes a means for bulk download of all 14 OLC opinions or a selection of opinions retrieved 15 using a text-based search; 16 (3) provides free access to the opinions, and 17 does not charge a fee, require registration, or impose 18 any other limitation in exchange for access to the 19 website; and 20 (4) is capable of being upgraded as necessary to 21 carry out the purposes of this Act. 22 SEC. 5. INDEX OF OPINIONS. 23 (a) IN GENERAL.—The Office of Legal Counsel shall 24 publish –— 25 VerDate Sep 11 2014 23:31 Oct 02, 2019 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H4556.IH H4556 pamtmann on DSKBC07HB2PROD with BILLS 8 •HR 4556 IH (1) a complete list of final OLC opinions, ar- 1 ranged chronologically, within 90 days of the enact- 2 ment of this legislation; 3 (2) the list of opinions shall be updated imme- 4 diately every time an OLC opinion becomes final; 5 and 6 (3) a revision to an opinion shall be listed as if 7 it were a new opinion. 8 (b) REQUIREMENTS AS TO LIST.—Each list under 9 subsection (a) shall comply with the following: 10 (1) PUBLICATION.—The list must be made 11 available to the public by publication on the website 12 in section 4. 13 (2) INFORMATION AND FORMAT REQUIRED.— 14 The list shall — 15 (A) include, for each opinion— 16 (i) the full name of the opinion; 17 (ii) the date it was finalized or re- 18 vised; 19 (iii) each author’s name; 20 (iv) each recipient’s name; 21 (v) a summary of the opinion; 22 (vi) a unique identifier assigned to 23 each final or revised opinion; and 24 VerDate Sep 11 2014 23:31 Oct 02, 2019 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H4556.IH H4556 pamtmann on DSKBC07HB2PROD with BILLS 9 •HR 4556 IH (vii) whether an opinion has been 1 withdrawn; and 2 (B) be published in both human-readable 3 and machine-readable formats. 4 SEC. 6. PRIVATE RIGHT OF ACTION. 5 On complaint, the district court of the United States 6 in the district in which the complainant resides, or has 7 his principal place of business, or in the District of Colum- 8 bia, has jurisdiction to enjoin the agency from withholding 9 information contained in a final OLC opinion and to order 10 the production of information improperly withheld from 11 the complainant. In such a case the court shall determine 12 the matter de novo, and may examine the contents of such 13 OLC opinion in camera to determine whether such infor- 14 mation or any part thereof shall be withheld under any 15 of the exemptions set forth in section 3, and the burden 16 is on the agency to sustain its action. 17 SEC. 7. SEVERABILITY. 18 If any provision of this Act, any amendment made 19 by this Act, or the application thereof to any person or 20 circumstances is held invalid, the validity of the remainder 21 of the Act, of any such amendments, and of the applica- 22 tion of such provisions to other persons and circumstances 23 shall not be affected thereby. 24 VerDate Sep 11 2014 23:31 Oct 02, 2019 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H4556.IH H4556 pamtmann on DSKBC07HB2PROD with BILLS 10 •HR 4556 IH SEC. 8. DEFINITIONS. 1 (a) OLC OPINION.—The term ‘‘OLC opinion’’ means 2 views on a matter of legal interpretation communicated 3 by the Office of Legal Counsel of the Department of Jus- 4 tice to any other office or agency, or person in an office 5 or agency, in the Executive Branch, including any office 6 in the Department of Justice, the White House, or the 7 Executive Office of the President, and rendered in accord- 8 ance with sections 511–513 of title 28, United States 9 Code. Where the communication of the legal interpretation 10 takes place verbally, a memorialization of that communica- 11 tion qualifies as an ‘‘OLC opinion’’. 12 (b) FINAL OLC OPINION.—The term ‘‘final OLC 13 opinion’’ means an OLC opinion that— 14 (1) the Attorney General, Assistant Attorney 15 General for OLC, or a Deputy Assistant General for 16 OLC, has determined is final; 17 (2) government officials or government contrac- 18 tors are relying on; 19 (3) is relied upon to formulate legal guidance; 20 or 21 (4) is directly or indirectly cited in another Of- 22 fice of Legal Counsel opinion. 23 VerDate Sep 11 2014 23:31 Oct 02, 2019 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H4556.IH H4556 pamtmann on DSKBC07HB2PROD with BILLS 11 •HR 4556 IH (c) REVISED OLC OPINION.—The term ‘‘revised 1 OLC opinion’’ means an OLC opinion that is withdrawn, 2 information is added to, or information is removed from. 3 Æ VerDate Sep 11 2014 23:31 Oct 02, 2019 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6301 E:\BILLS\H4556.IH H4556 pamtmann on DSKBC07HB2PROD with BILLS