Privacy Law

Justice Department legal opinion on call records is protected from disclosure, DC Circuit rules

A federal appeals court has ruled against the Electronic Frontier Foundation in its fight for a legal opinion by the Justice Department that said phone companies may voluntarily give call records to the FBI.

The U.S. Court of Appeals for the D.C. Circuit said the Jan. 8, 2010, opinion by the Office of Legal Counsel is protected by the deliberative process privilege. The New York Times has a story, and How Appealing links to the opinion (PDF).

According to the Times, the legal memo “apparently opened a loophole in laws protecting the privacy of consumer data” when it allowed phone companies to turn over records without a subpoena or court order.

The Justice Department’s Office of Inspector General disclosed the existence of the memo in a report that said the FBI claimed it never relied on the legal authority. Still, the Inspector General maintained the memo “creates a significant gap in FBI accountability and oversight that should be examined closely.”

The D.C. Circuit said the legal opinion amounted to advice offered to the FBI, and it need not be disclosed when the agency does not adopt it. “The authorities that control disposition of this case are the decisions holding that the deliberative process privilege does cover legal memoranda that cover the advisability of a particular policy, but do not authoritatively state or determine the agency’s policy,” the D.C. Circuit said.

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