[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 3858 Introduced in Senate (IS)]

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117th CONGRESS
  2d Session
                                S. 3858

 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

                             March 16, 2022

  Ms. Duckworth (for herself and Mr. Leahy) 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 30 days after the date 
                        of enactment of the DOJ OLC Transparency Act, 
                        publish all of the OLC opinions issued during 
                        fiscal years 2020 through 2023;
                            ``(ii) 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;
                            ``(iii) 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;
                            ``(iv) 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
                            ``(v) 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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