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D.C. Circuit Narrows Advisory Committee Openness

For more information contact
Tom Blanton/Meredith Fuchs - 202/994-7000

May 10, 2005

Read the Decision
United States Court of Appeals, "In Re: Richard B. Cheney, Vice President of the United States, et al., Petitioners," May 10, 2005

Related Postings

November 30, 2004
Archive joins library and public interest groups supporting access to special interests in Cheney's energy task force

The National Security Archive files an amici curiae brief with the United States Court of Appeals for the District of Columbia Circuit

June 24, 2004
Supreme Court Refuses to Approve the Immunity from Discovery Sought by Vice President Cheney

Remands Case on Energy Task Force to D.C. Circuit Court of Appeals

March 11, 2004
Librarians/Archivists/Public Interest v. Vice President Cheney
National Security Archive Joins Amicus Brief in Supreme Court Versus Government Secrecy Around Energy Task Force


Washington, D.C., May 10, 2005 - The D.C. Circuit today issued a unanimous, en banc decision effectively ending the effort by the Sierra Club and Judicial Watch to obtain information about who participated in Vice President Cheney's National Energy Policy Development Group (the "energy task force"). The plaintiffs' goal was to determine whether special interests acted as de facto members of the task force, which would then permit the plaintiffs to obtain further information about the task force's activities and recommendations.

Without restating too much of the history of the case, the plaintiffs sought information under the Federal Advisory Committee Act (FACA) about participation in the task force by private lobbyists and corporations. The trial court ordered limited discovery and did not address constitutional concerns raised by the government. The government appealed to a three judge panel of the D.C. Circuit. Two judges on the appeal panel upheld the limited discovery, suggesting that the government could invoke executive privilege in response to discovery requests. A third judge dissented on the basis of separation of powers constitutional concerns.

The case then went to the Supreme Court, which did not address the constitutional issues. Instead, the Supreme Court sent the case back to the D.C. Circuit, suggesting that it may be appropriate to search for pragmatic approaches that resolve those specific matters genuinely in dispute while accommodating the legitimate interests of all parties and avoiding the constitutional separation of powers issue.

The plaintiffs then sought to have the case return to the trial court, where they wanted to limit their discovery even further than originally permitted by the district court. But, instead, the D.C. Circuit agreed to hear further argument en banc (all of the active appellate judges participated in the proceeding). At argument, the judges seemed to view the plaintiffs' showing of non-governmental special interests' involvement in the task force as weak, especially in light of the sworn declarations presented by the government. The government repeatedly urged the D.C. Circuit to go beyond this threshold issue, however, and construe FACA as unconstitutional when applied to the executive or lacking a de facto member doctrine. (Notably, the de facto member doctrine was established in a D.C. Circuit case finding that Hillary Clinton's health care task force was subject to FACA).

Today the D.C. Circuit ruled in favor of the government. Heeding the Supreme Court's cautions, the D.C. Circuit did not make a finding that FACA would violate separation of powers principles if imposed on the executive branch. To avoid the constitutional issue, the court took a technical approach to the statute and held that so long as the government committee's official members are only government employees, the committee will not become subject to FACA merely because some outsider participates in the meetings of the committee, or even does so persuasively. So long as the outsider has no vote on the committee, then FACA does not apply. Unfortunately, this means that the transparency goals of FACA can always be avoided by naming only government employees to the committee, regardless of who in fact influences the committee.

The court also found that the factual record in this case (based on the government's sworn declaration) does not establish the participation of any outsiders in the energy task force meetings, and thus there would be no basis for invoking FACA anyway. Since the plaintiffs never were able to conduct any discovery, they were never able to get behind the bland assurances in the declaration.

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