DOJ OLC Transparency Act

II 116TH CONGRESS 2D SESSION S. 3334 To require the publication of opinions issued by the Office of Legal Counsel of the Department of Justice, and for other purposes. IN THE SENATE OF THE UNITED STATES FEBRUARY 25, 2020 Ms. DUCKWORTH introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To require the publication of opinions issued by the Office of Legal Counsel of the Department of Justice, 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 ‘‘Demanding Oversight 4 and Justification Over Legal Conclusions Transparency 5 Act’’ or the ‘‘DOJ OLC Transparency Act’’. 6 SEC. 2. PUBLICATION AND DISTRIBUTION OF OPINIONS. 7 Section 521 of title 28, United States Code, is 8 amended— 9 VerDate Sep 11 2014 23:18 Feb 25, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S3334.IS S3334 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 3334 IS (1) by inserting ‘‘(a) IN GENERAL.—’’ before 1 ‘‘The Attorney General’’; and 2 (2) by adding at the end the following: 3 ‘‘(b) OLC OPINIONS.— 4 ‘‘(1) DEFINITIONS.—In this subsection, the fol- 5 lowing terms shall apply: 6 ‘‘(A) FINAL OLC OPINION.—The term 7 ‘final OLC opinion’ means an OLC opinion 8 that— 9 ‘‘(i) the Attorney General, Assistant 10 Attorney General for the Office of Legal 11 Counsel, or a Deputy Assistant General for 12 the Office of Legal Counsel, has deter- 13 mined is final; 14 ‘‘(ii) is relied upon by government of- 15 ficials or government contractors; 16 ‘‘(iii) is relied upon to formulate legal 17 guidance; or 18 ‘‘(iv) is directly or indirectly cited in 19 another OLC opinion. 20 ‘‘(B) OLC OPINION.—The term ‘OLC 21 opinion’— 22 ‘‘(i) means views on a matter of legal 23 interpretation communicated by the Office 24 of Legal Counsel of the Department of 25 VerDate Sep 11 2014 23:18 Feb 25, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S3334.IS S3334 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 3334 IS Justice to any other office or agency, or 1 person in an office or agency, in the Exec- 2 utive Branch, including any office in the 3 Department of Justice, the White House, 4 or the Executive Office of the President, 5 and rendered in accordance with sections 6 511 through 513; and 7 ‘‘(ii) includes— 8 ‘‘(I) in the case of a verbal com- 9 munication of a legal interpretation, a 10 memorialization of that communica- 11 tion; 12 ‘‘(II) a final OLC opinion; and 13 ‘‘(III) a revised OLC opinion. 14 ‘‘(C) REVISED OLC OPINION.—The term 15 ‘revised OLC opinion’ means an OLC opinion— 16 ‘‘(i) that is withdrawn; 17 ‘‘(ii) to which information is added; or 18 ‘‘(iii) from which information is re- 19 moved. 20 ‘‘(2) REQUIREMENT.—Subject to paragraph (3) 21 and in accordance with paragraph (4), the Attorney 22 General shall publish all OLC opinions on the public 23 website of the Department to be accessed by the 24 public free of charge. 25 VerDate Sep 11 2014 23:18 Feb 25, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S3334.IS S3334 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 3334 IS ‘‘(3) REDACTION OF CLASSIFIED INFORMA- 1 TION.— 2 ‘‘(A) IN GENERAL.—In the case of an OLC 3 opinion required to be published under para- 4 graph (2) that contains information classified 5 as confidential, secret, or top secret, the Attor- 6 ney General shall— 7 ‘‘(i) redact the classified information 8 from the OLC opinion before publication of 9 the OLC opinion; and 10 ‘‘(ii) establish and preserve an accu- 11 rate record documenting each redaction 12 from the OLC opinion, including informa- 13 tion describing in detail why public online 14 disclosure of the classified information 15 would have resulted in the associated harm 16 that pertains to each level of classification. 17 ‘‘(B) LIMITATION.—The Attorney General 18 may not redact information under this para- 19 graph that is sensitive but unclassified. 20 ‘‘(C) SUBMISSION TO CONGRESS.—In the 21 case of an OLC opinion described in subpara- 22 graph (A), the Attorney General shall submit 23 the full opinion, without redaction, to any Mem- 24 VerDate Sep 11 2014 23:18 Feb 25, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S3334.IS S3334 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 3334 IS ber of Congress and any appropriately cleared 1 congressional staff member. 2 ‘‘(D) PERIODIC REVIEW.—To the max- 3 imum extent practicable, the Attorney General 4 shall, on a continual basis and not less fre- 5 quently than once every 90 days— 6 ‘‘(i) review every OLC opinion pub- 7 lished under this subsection that contains 8 redactions of classified information; and 9 ‘‘(ii) remove any redactions that no 10 longer protect information that is classified 11 as either sensitive, secret, or top secret. 12 ‘‘(4) DEADLINE FOR PUBLICATION.— 13 ‘‘(A) IN GENERAL.—Each OLC opinion 14 issued by the Office of Legal Counsel of the De- 15 partment after the date of enactment of the 16 DOJ OLC Transparency Act shall be published 17 in accordance with this section as soon as prac- 18 ticable, but not later than 48 hours, after the 19 date of issuance of the opinion. 20 ‘‘(B) PREVIOUSLY ISSUED OPINIONS.—In 21 the case of OLC opinions issued before the date 22 of enactment of the DOJ OLC Transparency 23 Act, the Attorney General shall, subject to sub- 24 paragraph (C)— 25 VerDate Sep 11 2014 23:18 Feb 25, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S3334.IS S3334 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 3334 IS ‘‘(i) not later than 60 days after the 1 date of enactment of the DOJ OLC Trans- 2 parency Act, publish all of the OLC opin- 3 ions issued during fiscal years 2000 4 through 2019; 5 ‘‘(ii) not later than 90 days after the 6 date of enactment of the DOJ OLC Trans- 7 parency Act, publish all of the OLC opin- 8 ions issued during fiscal years 1980 9 through 1999; 10 ‘‘(iii) not later than 120 days after 11 the date of enactment of the DOJ OLC 12 Transparency Act, publish all of the OLC 13 opinions issued during fiscal years 1960 14 through 1979; and 15 ‘‘(iv) not later than 2 years after the 16 date of enactment of the DOJ OLC Trans- 17 parency Act, publish all of the OLC opin- 18 ions issued before fiscal year 1960. 19 ‘‘(C) DESCRIPTION OF CERTAIN OPIN- 20 IONS.—In the case of an OLC opinion issued by 21 the Office of Legal Counsel of the Department 22 before the date of enactment of the DOJ OLC 23 Transparency Act for which the text of the 24 VerDate Sep 11 2014 23:18 Feb 25, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S3334.IS S3334 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 3334 IS OLC opinion cannot be located, the Attorney 1 General shall— 2 ‘‘(i) publish a description of the OLC 3 opinion; and 4 ‘‘(ii) submit a written certification to 5 Congress, under penalty of perjury, that— 6 ‘‘(I) a good faith effort was made 7 to find the text of the OLC opinion; 8 and 9 ‘‘(II) the text of the OLC opinion 10 is unavailable. 11 ‘‘(5) RIGHT OF ACTION.— 12 ‘‘(A) IN GENERAL.—On complaint brought 13 by a complainant who has been harmed as a re- 14 sult of being deprived access to an OLC opinion 15 that is required to be made available to the 16 public free of charge on the public website of 17 the Department under this subsection, the dis- 18 trict court of the United States in the district 19 in which the complainant resides, or has his 20 principal place of business, or in the District of 21 Columbia, has jurisdiction to enjoin the Office 22 of Legal Counsel from withholding information 23 required to be made available under this sub- 24 VerDate Sep 11 2014 23:18 Feb 25, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S3334.IS S3334 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 3334 IS section and to order the production of informa- 1 tion improperly withheld from the complainant. 2 ‘‘(B) REVIEW.—In a case brought under 3 subparagraph (A)— 4 ‘‘(i) the court— 5 ‘‘(I) shall determine the matter 6 de novo; and 7 ‘‘(II) may examine the contents 8 of the opinion issued by the Office of 9 Legal Counsel in camera to determine 10 whether such information or any part 11 thereof shall be withheld under para- 12 graph (3); and 13 ‘‘(ii) the burden is on the Office of 14 Legal Counsel to sustain its action.’’. 15 Æ VerDate Sep 11 2014 23:18 Feb 25, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6301 E:\BILLS\S3334.IS S3334 pamtmann on DSKBC07HB2PROD with BILLS