US government advice on FBI spying can stay secret, judge rules

A federal appeals court in the US has ruled that a confidential Justice Department legal opinion on the scope of the FBI's surveillance authority can stay secret.

The appeals court rejected an effort by the Electronic Frontier Foundation, a civil liberties group, to make public a January 2010 memo from the Office of Legal Counsel (OLC) that allowed the FBI to informally gather customer phone call records from telecoms companies.

In a 20-page decision, the court agreed with a lower-court judge that the government had properly withheld the memo under an exception to the Freedom of Information Act.

"The District Court correctly concluded that the unclassified portions of the OLC opinion could not be released without harming the deliberative processes of the government by chilling the candid and frank communications necessary for effective governmental decision-making," the court said in its opinion written by D.C. Circuit Judge Harry Edwards.

The case is significant because it is the first time that the D.C. Circuit had taken up the issue of whether such Justice Department legal opinions are required to be disclosed under the Freedom of Information Act.

A Justice Department spokesman said the department was "pleased with the decision".

But Mark Rumold, a lawyer at the EFF, said the group was "disappointed by today's decision, which allows the government to continue to secretly reinterpret federal surveillance laws in ways that diverge significantly from the public's understanding of these laws".