Lawsuits demand Cheney disclose task force details

From the Spring 2002 issue of The News Media & The Law, page 36.

Vice President Richard Cheney’s steadfast refusal to tell what went on in his energy task force stems, he says, not from any desire to keep those activities secret but from a desire to protect the administration’s ability to attract the candid advice of outsiders.

Some Democratic lawmakers, environmentalists and governmental watchdogs disagree, speculating that large energy companies exercised disproportionate influence in framing the national energy policy, and that the administration merely wishes to downplay their participation.

A series of Freedom of Information Act lawsuits dislodged much of the information held by task force members.

The administration continues to argue that neither Cheney nor the task force is subject to open government laws such as the FOI Act or the Federal Advisory Committee Act, although information held by agency heads is clearly subject to FOI requests.

Task force members include the chiefs of the departments of Energy, Interior, Commerce, Transportation, Treasury and Agriculture and the Environmental Protection Agency. Andrew Lundquist, who headed the Senate staff dealing with energy issues, served as executive director.

The National Energy Policy Development Group held its first meeting on Jan. 29, 2001, meeting nine times in four months before issuing a report to the president recommending a national energy policy.

Cheney initially refused even to say who participated in the task force. He later revealed the number of times the task force had met and that it gathered data from many sources. He also disclosed that the task force included only governmental officials, who consulted with persons outside government.

After the Enron Corp. filed for bankruptcy, Cheney told reporters about task force meetings held with Enron executives and a little about their role in advising the task force.

All of the information is not available, however, and the extent to which the vice president and the task force must make information public is an issue before the courts.

President Bush, Cheney and presidential press secretary Ari Fleischer have told the press repeatedly that the administration will not accede to demands for task force records by the General Accounting Office, the investigative agency of Congress. In late February, the GAO sued for information on the task force. It is the first lawsuit ever filed against the executive branch by the GAO.

“When the GAO demands documents from us, we’re not going to give them to them. These were privileged conversations,” Bush said at a mid-March news conference reported by Reuters. “I have an obligation to make sure that the presidency remains robust and that the legislative branch doesn’t end up running the executive branch.”

Bush’s remarks echoed earlier ones from Fleischer. At a late January news conference, Fleischer said the GAO, in seeking task force records, acted outside its authority. He said the vice president was “fighting for his right and the right of all future presidents to receive advice without it being turned into a virtual news release.”

At no time has the administration asserted executive privilege to protect the records. Fleischer said it is not claiming executive privilege because it does not have to. The GAO, he said, cannot make such demands of the executive branch.

The vice president is also embroiled in lawsuits for task force information by the environmentalist Sierra Club and the feisty and sometimes conservative watchdog organization Judicial Watch.

The Department of Energy, a task force participant, released some information about its activities in March under court order in a suit brought against it by the Natural Resources Defense Council. But officials with the council said they are going back to court to seek contempt charges against the agency, which missed an agreed-upon deadline to provide more records.

The GAO lawsuit

For almost a year, U.S. Comptroller General David Walker pleaded with Cheney to provide task force records. He narrowed his request, but ultimately filed suit for the records in a U.S. district court in Washington, D.C.

In April 2001, Congressmen John Dingell (D-Mich.), ranking minority member of the House Energy and Commerce Committee, and Henry Waxman (D-Calif.), ranking minority member of the Government Reform Committee, asked Walker to look at the task force and its membership to see whether Bush supporters were on it.

In June, Cheney sent Walker records showing what the task force cost, saying the GAO’s only interest in the task force activities was a “financial” one.

In July, Walker sent a demand letter ordering the task force to produce within 20 days records about meetings held with persons outside government. In August, he modified that letter to exclude notes and minutes of those meetings, and is now essentially seeking only information about who met with task force members.

The vice president refused to turn over “notes and minutes” of meetings.

“You cannot accept that proposition without putting a chill over the ability of the president or vice president to receive unvarnished advice,” he told Fox News.

By late January, Walker had selected Washington attorney Carter Phillips to bring the lawsuit. Phillips had litigated on behalf of energy interests in the past.

On Feb. 22, the GAO filed its lawsuit in federal court, seeking the names of persons and entities who appeared before the task force. (GAO v. Cheney)

The NRDC lawsuit

In the National Resources Defense Council lawsuit, U.S. District Court Judge Gladys Kessler in Washington, D.C., in late February ordered the Department of Energy to release task force records, describing the agency as “woefully tardy” in responding to an April 2001 FOI Act request.

Kessler ordered the release to be complete by March 25.

She questioned “what in the world” the department had been doing with the request other than to release “virtually meaningless” form letters. She accused the agency of moving “at a glacial pace.”

What is even more distressing, the judge said, was that the department had 11 other FOI requests for information on the energy task force and had responded to none of them.

The agency released numerous records by mid-April but withheld some under an internal records exemption saying they could have put the Energy Secretary’s security staff at risk, some under an exemption that protects deliberations and others because their release would “intrude upon personal privacy.”

Analysts with the council said that among findings from the released documents was that Bush’s Executive Order 13211 on energy policy, issued in March 2001, was nearly identical in structure and nearly verbatim in one section to an e-mail from the American Petroleum Institute. (NRDC v. Department of Energy)

The Judicial Watch cases

Judicial Watch sued the task force charging that it violated the Federal Advisory Committee Act by working secretly with groups outside government and that Cheney, the task force and other government agencies failed to comply with the watchdog group’s FOI Act requests.

U.S. District Court Judge Emmet Sullivan in Washington, D.C., chastised attorneys for the Department of Justice in early March for not giving sufficient attention to the arguments raised by Judicial Watch and ordered further preparation in the case. (Judicial Watch v. Cheney)

Judicial Watch also brought a FOI Act case against federal agencies participating on the task force and U.S. District Court Judge Paul Friedman in Washington, D.C., set a timetable for March and late April for agencies to identify disclosable and exempt records. (Judicial Watch v. Dep’t of Energy)

The Sierra Club case

The Sierra Club, like Judicial Watch, also sued under the Federal Advisory Committee Act to determine if the task force met illegally. Although it brought the lawsuit in a U.S. district court in San Francisco, the case has been ordered joined with the Judicial Watch case. — RD