[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 3334 Introduced in Senate (IS)]
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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 Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Demanding Oversight and
Justification Over Legal Conclusions Transparency Act'' or the ``DOJ
OLC Transparency Act''.
SEC. 2. PUBLICATION AND DISTRIBUTION OF OPINIONS.
Section 521 of title 28, United States Code, is amended--
(1) by inserting ``(a) In General.--'' before ``The
Attorney General''; and
(2) by adding at the end the following:
``(b) OLC Opinions.--
``(1) Definitions.--In this subsection, the following terms
shall apply:
``(A) Final olc opinion.--The term `final OLC
opinion' means an OLC opinion that--
``(i) the Attorney General, Assistant
Attorney General for the Office of Legal
Counsel, or a Deputy Assistant General for the
Office of Legal Counsel, has determined is
final;
``(ii) is relied upon by government
officials or government contractors;
``(iii) is relied upon to formulate legal
guidance; or
``(iv) is directly or indirectly cited in
another OLC opinion.
``(B) OLC opinion.--The term `OLC opinion'--
``(i) means views on a matter of legal
interpretation communicated by the Office of
Legal Counsel of the Department of Justice to
any other office or agency, or person in an
office or agency, in the Executive Branch,
including any office in the Department of
Justice, the White House, or the Executive
Office of the President, and rendered in
accordance with sections 511 through 513; and
``(ii) includes--
``(I) in the case of a verbal
communication of a legal
interpretation, a memorialization of
that communication;
``(II) a final OLC opinion; and
``(III) a revised OLC opinion.
``(C) Revised olc opinion.--The term `revised OLC
opinion' means an OLC opinion--
``(i) that is withdrawn;
``(ii) to which information is added; or
``(iii) from which information is removed.
``(2) Requirement.--Subject to paragraph (3) and in
accordance with paragraph (4), the Attorney General shall
publish all OLC opinions on the public website of the
Department to be accessed by the public free of charge.
``(3) Redaction of classified information.--
``(A) In general.--In the case of an OLC opinion
required to be published under paragraph (2) that
contains information classified as confidential,
secret, or top secret, the Attorney General shall--
``(i) redact the classified information
from the OLC opinion before publication of the
OLC opinion; and
``(ii) establish and preserve an accurate
record documenting each redaction from the OLC
opinion, including information describing in
detail why public online disclosure of the
classified information would have resulted in
the associated harm that pertains to each level
of classification.
``(B) Limitation.--The Attorney General may not
redact information under this paragraph that is
sensitive but unclassified.
``(C) Submission to congress.--In the case of an
OLC opinion described in subparagraph (A), the Attorney
General shall submit the full opinion, without
redaction, to any Member of Congress and any
appropriately cleared congressional staff member.
``(D) Periodic review.--To the maximum extent
practicable, the Attorney General shall, on a continual
basis and not less frequently than once every 90 days--
``(i) review every OLC opinion published
under this subsection that contains redactions
of classified information; and
``(ii) remove any redactions that no longer
protect information that is classified as
either sensitive, secret, or top secret.
``(4) Deadline for publication.--
``(A) In general.--Each OLC opinion issued by the
Office of Legal Counsel of the Department after the
date of enactment of the DOJ OLC Transparency Act shall
be published in accordance with this section as soon as
practicable, but not later than 48 hours, after the
date of issuance of the opinion.
``(B) Previously issued opinions.--In the case of
OLC opinions issued before the date of enactment of the
DOJ OLC Transparency Act, the Attorney General shall,
subject to subparagraph (C)--
``(i) not later than 60 days after the date
of enactment of the DOJ OLC Transparency Act,
publish all of the OLC opinions issued during
fiscal years 2000 through 2019;
``(ii) not later than 90 days after the
date of enactment of the DOJ OLC Transparency
Act, publish all of the OLC opinions issued
during fiscal years 1980 through 1999;
``(iii) not later than 120 days after the
date of enactment of the DOJ OLC Transparency
Act, publish all of the OLC opinions issued
during fiscal years 1960 through 1979; and
``(iv) not later than 2 years after the
date of enactment of the DOJ OLC Transparency
Act, publish all of the OLC opinions issued
before fiscal year 1960.
``(C) Description of certain opinions.--In the case
of an OLC opinion issued by the Office of Legal Counsel
of the Department before the date of enactment of the
DOJ OLC Transparency Act for which the text of the OLC
opinion cannot be located, the Attorney General shall--
``(i) publish a description of the OLC
opinion; and
``(ii) submit a written certification to
Congress, under penalty of perjury, that--
``(I) a good faith effort was made
to find the text of the OLC opinion;
and
``(II) the text of the OLC opinion
is unavailable.
``(5) Right of action.--
``(A) In general.--On complaint brought by a
complainant who has been harmed as a result of being
deprived access to an OLC opinion that is required to
be made available to the public free of charge on the
public website of the Department under this subsection,
the district court of the United States in the district
in which the complainant resides, or has his principal
place of business, or in the District of Columbia, has
jurisdiction to enjoin the Office of Legal Counsel from
withholding information required to be made available
under this subsection and to order the production of
information improperly withheld from the complainant.
``(B) Review.--In a case brought under subparagraph
(A)--
``(i) the court--
``(I) shall determine the matter de
novo; and
``(II) may examine the contents of
the opinion issued by the Office of
Legal Counsel in camera to determine
whether such information or any part
thereof shall be withheld under
paragraph (3); and
``(ii) the burden is on the Office of Legal
Counsel to sustain its action.''.
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