II 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Demanding Oversight 

5 and Justification Over Legal Conclusions Transparency 

6 Act’’ or the ‘‘DOJ OLC Transparency Act’’. 

7 SEC. 2. PUBLICATION AND DISTRIBUTION OF OPINIONS. 

8 Section 521 of title 28, United States Code, is 

9 amended— 


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1 (1) by inserting ‘‘(a) IN GENERAL.—’’ before 

2 ‘‘The Attorney General’’; and 

3 (2) by adding at the end the following: 

4 ‘‘(b) OLC OPINIONS.— 

5 ‘‘(1) DEFINITIONS.—In this subsection, the fol6 lowing terms shall apply: 

7 ‘‘(A) FINAL OLC OPINION.—The term 

8 ‘final OLC opinion’ means an OLC opinion 

9 that— 

10 ‘‘(i) the Attorney General, Assistant 

11 Attorney General for the Office of Legal 

12 Counsel, or a Deputy Assistant General for 

13 the Office of Legal Counsel, has deter14 mined is final; 

15 ‘‘(ii) is relied upon by government of16 ficials or government contractors; 

17 ‘‘(iii) is relied upon to formulate legal 

18 guidance; or 

19 ‘‘(iv) is directly or indirectly cited in 

20 another OLC opinion. 

21 ‘‘(B) OLC OPINION.—The term ‘OLC 

22 opinion’— 

23 ‘‘(i) means views on a matter of legal 

24 interpretation communicated by the Office 

25 of Legal Counsel of the Department of 


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1 Justice to any other office or agency, or 

2 person in an office or agency, in the Exec3 utive Branch, including any office in the 

4 Department of Justice, the White House, 

5 or the Executive Office of the President, 

6 and rendered in accordance with sections 

7 511 through 513; and 

8 ‘‘(ii) includes— 

9 ‘‘(I) in the case of a verbal com10 munication of a legal interpretation, a 

11 memorialization of that communica12 tion; 

13 ‘‘(II) a final OLC opinion; and 

14 ‘‘(III) a revised OLC opinion. 

15 ‘‘(C) REVISED OLC OPINION.—The term 

16 ‘revised OLC opinion’ means an OLC opinion— 

17 ‘‘(i) that is withdrawn; 

18 ‘‘(ii) to which information is added; or 

19 ‘‘(iii) from which information is re20 moved. 

21 ‘‘(2) REQUIREMENT.—Subject to paragraph (3) 

22 and in accordance with paragraph (4), the Attorney 

23 General shall publish all OLC opinions on the public 

24 website of the Department to be accessed by the 

25 public free of charge. 


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1 ‘‘(3) REDACTION OF CLASSIFIED INFORMA2 TION.— 

3 ‘‘(A) IN GENERAL.—In the case of an OLC 

4 opinion required to be published under para5 graph (2) that contains information classified 

6 as confidential, secret, or top secret, the Attor7 ney General shall— 

8 ‘‘(i) redact the classified information 

9 from the OLC opinion before publication of 

10 the OLC opinion; and 

11 ‘‘(ii) establish and preserve an accu12 rate record documenting each redaction 

13 from the OLC opinion, including informa14 tion describing in detail why public online 

15 disclosure of the classified information 

16 would have resulted in the associated harm 

17 that pertains to each level of classification. 

18 ‘‘(B) LIMITATION.—The Attorney General 

19 may not redact information under this para20 graph that is sensitive but unclassified. 

21 ‘‘(C) SUBMISSION TO CONGRESS.—In the 

22 case of an OLC opinion described in subpara23 graph (A), the Attorney General shall submit 

24 the full opinion, without redaction, to any MemVerDate Sep 11 2014 19:58 Mar 17, 2022 Jkt 029200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S3858.IS S3858

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1 ber of Congress and any appropriately cleared 

2 congressional staff member. 

3 ‘‘(D) PERIODIC REVIEW.—To the max4 imum extent practicable, the Attorney General 

5 shall, on a continual basis and not less fre6 quently than once every 90 days— 

7 ‘‘(i) review every OLC opinion pub8 lished under this subsection that contains 

9 redactions of classified information; and 

10 ‘‘(ii) remove any redactions that no 

11 longer protect information that is classified 

12 as either sensitive, secret, or top secret. 

13 ‘‘(4) DEADLINE FOR PUBLICATION.— 

14 ‘‘(A) IN GENERAL.—Each OLC opinion 

15 issued by the Office of Legal Counsel of the De16 partment after the date of enactment of the 

17 DOJ OLC Transparency Act shall be published 

18 in accordance with this section as soon as prac19 ticable, but not later than 48 hours, after the 

20 date of issuance of the opinion. 

21 ‘‘(B) PREVIOUSLY ISSUED OPINIONS.—In 

22 the case of OLC opinions issued before the date 

23 of enactment of the DOJ OLC Transparency 

24 Act, the Attorney General shall, subject to sub25 paragraph (C)— 


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1 ‘‘(i) not later than 30 days after the 

2 date of enactment of the DOJ OLC Trans3 parency Act, publish all of the OLC opin4 ions issued during fiscal years 2020 

5 through 2023; 

6 ‘‘(ii) not later than 60 days after the 

7 date of enactment of the DOJ OLC Trans8 parency Act, publish all of the OLC opin9 ions issued during fiscal years 2000 

10 through 2019; 

11 ‘‘(iii) not later than 90 days after the 

12 date of enactment of the DOJ OLC Trans13 parency Act, publish all of the OLC opin14 ions issued during fiscal years 1980 

15 through 1999; 

16 ‘‘(iv) not later than 120 days after the 

17 date of enactment of the DOJ OLC Trans18 parency Act, publish all of the OLC opin19 ions issued during fiscal years 1960 

20 through 1979; and 

21 ‘‘(v) not later than 2 years after the 

22 date of enactment of the DOJ OLC Trans23 parency Act, publish all of the OLC opin24 ions issued before fiscal year 1960. 


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1 ‘‘(C) DESCRIPTION OF CERTAIN OPIN2 IONS.—In the case of an OLC opinion issued by 

3 the Office of Legal Counsel of the Department 

4 before the date of enactment of the DOJ OLC 

5 Transparency Act for which the text of the 

6 OLC opinion cannot be located, the Attorney 

7 General shall— 

8 ‘‘(i) publish a description of the OLC 

9 opinion; and 

10 ‘‘(ii) submit a written certification to 

11 Congress, under penalty of perjury, that— 

12 ‘‘(I) a good faith effort was made 

13 to find the text of the OLC opinion; 

14 and 

15 ‘‘(II) the text of the OLC opinion 

16 is unavailable. 

17 ‘‘(5) RIGHT OF ACTION.— 

18 ‘‘(A) IN GENERAL.—On complaint brought 

19 by a complainant who has been harmed as a re20 sult of being deprived access to an OLC opinion 

21 that is required to be made available to the 

22 public free of charge on the public website of 

23 the Department under this subsection, the dis24 trict court of the United States in the district 

25 in which the complainant resides, or has his 


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1 principal place of business, or in the District of 

2 Columbia, has jurisdiction to enjoin the Office 

3 of Legal Counsel from withholding information 

4 required to be made available under this sub5 section and to order the production of informa6 tion improperly withheld from the complainant. 

7 ‘‘(B) REVIEW.—In a case brought under 

8 subparagraph (A)— 

9 ‘‘(i) the court— 

10 ‘‘(I) shall determine the matter 

11 de novo; and 

12 ‘‘(II) may examine the contents 

13 of the opinion issued by the Office of 

14 Legal Counsel in camera to determine 

15 whether such information or any part 

16 thereof shall be withheld under para17 graph (3); and 

18 ‘‘(ii) the burden is on the Office of 

19 Legal Counsel to sustain its action.’’. 

Æ 


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