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Agencies can shield Cheney energy task force records

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NEWS MEDIA UPDATE   ·   WASHINGTON, D.C.   ·   Freedom of Information   ·   June 23, 2005

Agencies can shield Cheney energy task force records

  • An exemption to the Freedom of Information Act insulates eight federal agencies from having to release records concerning Vice President Richard Cheney’s energy task force, a federal appellate court ruled last week.

June 23, 2005  ·   Eight federal agencies may withhold records pertaining to the work of Vice President Richard Cheney’s energy task force because they are “deliberative” documents exempt from the Freedom of Information Act, the U.S. Court of Appeals in Washington, D.C., ruled Friday.

Exemption 5, which protects records which are part of an agency’s “deliberative process,”applies here, a unanimous three-judge panel said in reversing a trial court which had ruled that it did not. The exemption applies even though the records were not used to craft policies in the agencies housing the records, the court said.

What “matters is whether a document will expose the pre-decisional and deliberative processes of the Executive Branch,” not only of the particular agency where the document is filed, Judge Douglas Ginsburg wrote for the court.

Two nonprofit organizations, Judicial Watch and the Natural Resources Defense Council, sued eight federal agencies in 2001 after they refused to disclose records relating to Cheney’s National Energy Policy Development Group, created to set the Bush administration’s energy policy. The eight agencies sued are the Departments of Agriculture, Commerce, Energy, Interior, Transportation and the Treasury, along with the Environmental Protection Agency and the Federal Emergency Management Agency.

In defending the lawsuit, the agencies cited Exemption 5, arguing the records could be shrouded as “deliberative” and “pre-decisional” to encourage the continued candid exchange of ideas in formulating public policy.

A federal trial court ruled in favor of the requesters in early 2004, holding that agency could invoke Exemption 5 only to withhold predecisional records insofar as they were “predecisional of an agency’s own decision.” The government appealed.

Reversing the trial court, Judge Ginsburg construed Exemption 5 differently and said that the executive branch must be considered as a whole, not agency by agency. The “unitary structure of the executive branch is one of its essential features,” he wrote.

The parties also disputed whether some of the records are “agency records” since they pertain to work that was done not within an agency, but within an executive branch advisory task force which does not fall under the FOI Act.

The nonprofits argued that the records qualified as “agency records” when agency employees had been instrumental in their creation, an idea Ginsburg rejected. “Agencies routinely detail employees to the White House for a limited time or a specific task, and it is not for a court to burden that practice” by implying that the FOI Act applies to records created in such circumstances, he wrote.

This is not the first time that the U.S. Court of Appeals in Washington has weighed in on a controversy relating to Cheney’s energy task force records, which nonprofit groups and the press sought to investigate for alleged industry influence almost since its inception.

The task force’s records also have been the subject of extensive Federal Advisory Committee Act litigation since 2001. That case went all the way to the U.S. Supreme Court over a procedural dispute and the U.S. Court of Appeals in Washington later ruled in May that energy task force records did not have to be disclosed to the public under FACA.

(Judicial Watch v. Dep’t of Energy; Requester Counsel: Sharon Buccino and James F. Peterson; Washington, D.C.)RL

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