Brennan Center v. U.S. DOJ, HHS, USAID

In Brief – On October 15, 2009, the Brennan Center filed a Freedom Of Information Act (“FOIA”) lawsuit seeking a U.S. Office of Legal Counsel (“OLC”) opinion from February 2004 that concerns the constitutionality of enforcing an anti-prostitution pledge requirement against U.S.-based non-governmental organizations receiving certain federal grants to do humanitarian, anti-HIV/AIDS work abroad.  For 18 months, this OLC opinion served as the basis for the Bush Administration’s policy of not compelling U.S.-based NGOs to pledge their opposition to prostitution (the constitutionality of the anti-prostitution pledge requirement is the subject of a related Brennan Center case, AOSI v. USAID).  OLC then reversed course, opining that the pledge requirement might be constitutional after all, and the government has enforced the requirement ever since.  Three U.S. government agencies are named in the FOIA suit—the Department of Justice (“DOJ”), the Department of Health and Human Services (“HHS”), and USAID—as they have improperly withheld this OLC opinion from the Brennan Center for almost four years. The litigation has produced one concrete result:  the government has produced part of the OLC opinion we seek, although with most of the document blacked out. On August 30, 2011, the U.S. District Court for the Southern District of New York granted the Brennan Center’s motion for summary judgment and ordered DOJ, HHS and USAID to turn over the OLC opinion. The government appealed the decision to the Second Circuit, plaintiffs responded, and oral argument was heard on January 21, 2012.

Procedural History –The Brennan Center filed its FOIA lawsuit on October 15, 2009 in the U.S. District Court for the Southern District of New York. On January 28, 2011, the Brennan Center filed for Summary Judgment. On August 20, 2011 the U.S. District Court for the Southern District of New York granted the Brennan Center’s motion for summary judgment. On January 9, 2012 the government filed a brief appealing the decision to the Second Circuit. The Brennan Center filed a response brief on January 27, 2012. Oral argument was heard before the Circuit on January 21, 2012.

Questions Presented – Must DOJ, HHS, and USAID expeditiously turn over the requested OLC opinion, or is the document protected, as the Government claims, under Exemption 5 of the FOIA, which protects “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency”?

In Detail – In 2003, Congress enacted the US Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (“Leadership Act”) and the Trafficking Victims Protection Reauthorization Act of 2003  (“TVPRA”).  Both pieces of legislation conditioned receipt of federal funding under these Acts on non-governmental organizations (NGOs) adopting anti-prostitution policy positions.  The Brennan Center currently is representing NGOs in litigation challenging the constitutionality of the Leadership Act’s prostitution pledge requirement and has obtained a preliminary injunction against government enforcement of that pledge requirement against almost all U.S.-based NGOs receiving federal funds (See AOSI v. USAID).

Starting in 2005, the Brennan Center repeatedly filed FOIA requests for a February 2004 OLC opinion concerning the constitutionality of the anti-prostitution pledge requirements in the Leadership Act and TVPRA.  Although that opinion has never been publicly released, the Bush administration has described it as stating that enforcing the pledge requirement against U.S. organizations would be unconstitutional.  Relying on this opinion, the government refrained from enforcing the pledge requirements against U.S. NGOs for as long as 18 months.

In September 2004, OLC reversed course, opining that there were “reasonable” arguments to support the constitutionality of the pledge requirements.  HHS and USAID subsequently started enforcing the policy requirements against US NGOs.

OLC, HHS and USAID have repeatedly denied the Brennan Center’s FOIA requests seeking the February 2004 opinion.  The agencies claim that the opinion falls under Exemption 5 of FOIA, which is protects “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.”  However, the Brennan Center believes Exemption 5 to be inapplicable to the February OLC opinion, as the opinion provided the basis for an official government policy and should therefore be made public.  Having exhausted all possible courses of administrative remedy, the Brennan Center has filed suit in the Southern District of New York to obtain this document. The Brennan Center prevailed in the District Court and the government appealed to the Second Circuit.

News coverage –

• “Obama Administration Refuses to Release Bush-era OLC Opinion Characterizing 'Anti-Prostitution Policy Requirement’ as Unconstitutional”—the Brennan Center’s Laura Abel in The Hill’s Congress Blog (10/20/09)

• “The Anti-Prostitution Loyalty Oath”—The Daily Dish (10/16/09)

• “You’re Against Prostitution…Aren’t You??”—Reason (10/15/09)