NEWS MEDIA UPDATE · WASHINGTON, D.C. · Freedom of Information · May 12, 2005
No openness required for Cheney energy task force
May 12, 2005 · An executive branch energy task force convened to help develop national energy policy is not required under the Federal Advisory Committee Act to open its meetings or records, the U.S. Court of Appeals in Washington, D.C., ruled Tuesday. Barring further appeal, the decision may end a four-year battle for information access.
FACA exempts advisory committees with all-federal-employee memberships from records disclosure requirements. Judge A. Raymond Randolph, writing for the full unanimous court, said that “FACA is silent” on when an individual’s participation with a federal advisory committee converts him or her into a member. Raymond noted that Bush had granted advisory committee voting rights only to federal employees.
Separation-of-powers issues compelled the court to construe FACA strictly, Randolph said, so as not to infringe on the autonomy of the executive branch. Even if a member of the private sector presented important information to the task force, “having neither a vote nor a veto over the advice the committee renders to the President, he is no more a member of the committee than the aides who accompany Congressmen or cabinet officers to committee meetings,” the court concluded. The task force was therefore entitled to the FACA exemption for groups comprised exclusively of federal employees, the court ruled.
President George W. Bush created the National Energy Policy Development Group in January 2001 to help develop a national energy policy, and appointed Vice President Dick Cheney as its chairman. When the task force reported its findings to the president five months later, non-profit groups Judicial Watch and the Sierra Club requested related records under FACA, which requires that certain executive advisory committees open their business to the public.
The task force’s “exclusively federal membership” was a sham meant to mask private sector involvement on the task force, including former Enron CEO Kenneth Lay, the two groups alleged. The “de facto membership doctrine” should preclude the government’s claimed FACA exemption for groups comprised exclusively of federal employees, the organizations said. The groups filed separate lawsuits against various defendants, including Cheney, that were eventually consolidated into one.
This was the second time the U.S. Court of Appeals heard the case. In April 2003, the court refused to hear the government’s separation-of-powers argument unless it first crafted an executive privilege log for discovery materials before the trial court. That decision was appealed to the U.S. Supreme Court, which told the D.C. Circuit that invocation of executive privilege was not a precondition to a separation of powers argument.
The litigation has also spawned auxiliary controversy, including a call in 2004 for U.S. Supreme Court Justice Antonin Scalia to recuse himself from the case after he went duck hunting with Cheney in Louisiana. Scalia refused.
At a U.S. House hearing on open government issues Wednesday, Rep. Henry Waxman (D-Calif.) said he plans to reintroduce his “Restore Open Government Act” bill which would, among other things, expand FACA to clearly cover such task forces as Cheney’s.
(In re: Cheney; Requester’s Counsel: Sanjay Narayan and Paul J. Orfanedes; Washington, D.C.) — RL