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Judge orders energy task force documents released

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    News Media Update         WASHINGTON, D.C.         Freedom of Information    

Judge orders energy task force documents released

  • Nine federal agencies must release documents under the FOI Act relating to the national energy task force headed by Vice President Dick Cheney.

April 2, 2004 — A federal judge yesterday ordered nine federal agencies to release documents under the Freedom of Information Act relating to the 2001 national energy task force headed by Vice President Dick Cheney. Some of the same documents are at issue in a lawsuit that is currently before the U.S. Supreme Court.

The documents to be released relate to the activities of the National Energy Policy Development Group, created by President Bush on Jan. 29, 2001, to provide recommendations for a national energy policy. The group, commonly known as the energy task force, was headed by Cheney and included senior officials and staff from many federal agencies.

In April 2001, two public interest groups, Judicial Watch and the Natural Resources Defense Counsel, began filing a series of FOI Act requests with the federal agencies for documents relating to the activities of the task force. Judicial Watch and the NRDC believe that executives and lobbyists from the energy industry were permitted to participate in the task force and influenced its recommendations.

When the federal agencies did not comply with the requests, Judicial Watch and the NRDC filed a total of three lawsuits in federal court in Washington, D.C., beginning in May 2001. The lawsuits were then consolidated.

The federal defendants are the Department of Energy, the Department of the Interior, the Bureau of Land Management, the Department of Agriculture, the Environmental Protection Agency, the Department of Commerce, the Department of Transportation, the Department of the Treasury and the Federal Emergency Management Agency. A 10th federal agency, the Office of Management and Budget, was also sued but settled with the plaintiffs.

Judicial Watch and the Sierra Club filed separate lawsuits against Cheney and the other members of the task force in July 2001 and January 2002, alleging that they violated the openness requirements of the Federal Advisory Committee Act by meeting in secret with members of the energy industry. Those consolidated lawsuits, concerning whether the defendants have to disclose the identities of participants in the task force meetings, are currently before the Supreme Court.

The U.S. Court of Appeals (D.C. Cir.) ruled in July 2003 that Cheney must disclose the information.

On April 1, U.S. District Court Judge Paul Friedman ruled in a 97-page opinion and order that although the energy task force is not an agency subject to the FOI Act, certain records created by the federal agencies for the task force are subject to the act.

“The Office of the Vice President chose to borrow Department of Energy personnel to staff the NEPDG rather than to hire personnel for the Office of the Vice President or to use existing White House personnel,” Friedman wrote. “It follows from established case law that such persons remain agency employees subject to the FOIA.”

He applied that reasoning to some of the other defendant agencies as well.

Friedman also ruled that the agencies could not withhold documents created by federal agencies for the task force under FOI Act exemption 5 — for inter- and intra-agency communications — because the task force was not a federal agency.

The agencies have until June 1 to disclose the records or assert that another exemption applies.

Among the other issues decided by the court was that the agencies could properly withhold a small number of documents under the attorney-client privilege and the FOI Act’s exemption 4 — for proprietary information provided by private businesses.

(Judicial Watch, Inc. v. United States Department of Energy, et al.; National Resources Defense Council, Inc. v. United States Department of Energy; National Resources Defense Council, Inc. v. United States Department of Interior, et al.)) GP

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