Brennan Center Files Suit for the Release of Opinion on Pledge Requirement

Last week the Brennan Center for Justice filed a lawsuit [1] to force the release of a legal opinion regarding the "pledge requirement," requiring organizations that receive federal grants for HIV/AIDS work to pledge opposition to prostitution. The opinion was drafted in 2004 by the Office of Legal Counsel (OLC) and supposedly questions the constitutionality of the federal law. We have opposed the pledge requirement as an unconstitutional speech restriction, undermining the work of nonprofits overseas working to fight HIV/AIDS. The memo has never been publicly disclosed and therefore the public does not know the legal reasoning.

The Hill's Congress blog has a post [2] highlighting the Brennan Center's efforts to get the opinion released.

Now, HHS is embarking on a rulemaking process, with the goal of revising regulations that implement the policy requirement by early January 2010. This is a crucial moment for the public to play a role in shaping those regulations. Understanding why OLC initially condemned the policy requirement as unconstitutional could not be more important. So far, though, OLC, HHS and USAID have refused our FOIA requests for the February 2004 OLC opinion. On Inauguration Day, President Obama instructed the executive agencies to honor FOIA requests whenever possible, stating: "A democracy requires accountability, and accountability requires transparency."