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Judge rejects GAO's case for open records of the Cheney task force

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    NMU         WASHINGTON, D.C.         Freedom of Information         Dec 9, 2002    

Judge rejects GAO’s case for open records of the Cheney task force

  • Citing separation of powers reasons, the court “must refrain” from deciding a lawsuit brought for records of a vice presidential task force on energy policy, a federal district judge ruled Dec. 9.

Despite “significant statutory and constitutional issues” in the dispute over secret proceedings of Vice President Dick Cheney’s energy task force, a federal district judge in Washington, D.C. dismissed the case Dec. 9.

Judge John D. Bates ruled that the case for openness did not demonstrate a real need for judicial review and that Comptroller General David Walker cannot require the courts to settle the inter-branch dispute in light of weighty separation of powers issues.

Walker, who heads the General Accounting Office, Congress’s investigatory agency, sued Cheney in February for the names of persons and entities who had appeared before the task force, which advised the administration on energy policy.

Walker tried repeatedly for nearly a year to get information about who was being asked to influence energy policy. The inquiry began when Rep. Henry Waxman (D-Calif.) and John Dingell (D-Mich.) asked GAO to seek the information they had not been able to get from the executive branch. Other senators and representatives joined the effort.

Cheney regularly refused to give Walker information, saying that if the president or vice president were forced to give up such details, it would chill their ability to receive “unvarnished” advice. Cheney said GAO was entitled only to “financial” information about the task force, which he supplied. Later Cheney revealed that task force members were all cabinet and other government officials although they invited outsiders to meet with them.

The lawsuit was the first ever filed by GAO against the executive branch. Bates said that there was no historical experience suggesting that the court could decide this case. He noted that Congress itself had not subpoenaed the records and that there was not strong congressional support for the lawsuit.

Without information about who comprised the task force or how outsiders participated, it was impossible to determine whether the committee was subject to the Federal Advisory Committee Act. FACA requires open meetings and records except where specific exemptions apply. The act applies when outsiders and government officials meet to form consensus policy advice for the government.

In another case over Cheney task force records, Judge Emmet Sullivan Oct.18 ordered records on the composition and procedures of the task force made available through discovery proceedings. The case, which consolidated actions by Judicial Watch, a public interest organization in Washington, D.C., and the Sierra Club, has been appealed by the government.

(Walker v. Cheney; Attorney: Carter Philips, Sidley Austin Brown & Wood, Washington, D.C.; Judicial Watch v. National Energy Policy Group; attorney: Larry Klayman, Washington, D.C.; Sierra Club v. Cheney; attorney: Richard Adelman, Washington, D.C.) RD

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