Lawyers for Vice President Dick Cheney are vigorously defending his decision not to release certain information related to private White House meetings of the National Energy Policy Development Group (NEPDG), which drafted a comprehensive national energy strategy that is currently being debated on Capitol Hill. The public advocacy group Judicial Watch has taken the NEPDG to court, after the White House denied the group’s requests for information.
Judicial Watch argues that the NEPDG case is “strikingly similar” to former First Lady Hillary Clinton’s health care task force, which drafted a controversial health care reform legislative package in 1993. One distinctive difference in this instance, however, is that NEPDG was composed entirely of federal employees (primarily Cabinet members) and produced a report that contained several hundred recommendations. In this case, the White House argues that Executive Branch employees have a constitutional right to received candid and confidential advice from outside advisors.
In a brief filed in response to an order issued by the U.S. District Court for the District of Columbia, lawyers for NEPDG argued that the energy task force, which was composed exclusively of federal employees and not private citizens (and which is no longer in existence) is not subject to same disclosure rules that apply to formal federal advisory committees. The brief also argues that neither the Office of the Vice President nor the NEPDG is subject to disclosure under the Freedom of Information Act (FOIA) because neither entity is a “federal agency” as defined by the statute.
Vice President Cheney has authorized release of the dates and times of meetings of the NEPDG, as well as the names of the participants. He will not, however, reveal all of the private parties that were consulted, and the nature of the information that was discussed with each. The White House’s main argument, as stated in the brief, is that “due regard for the constitutional separation of powers requires respect for the confidences of the President, the Vice President, and the President’s senior advisers as they develop recommendations for policy and legislation – a core constitutional function of the President.”
The brief goes on to say, “in order for the Executive Branch to function effectively, a President and his senior advisers must be able to work in an atmosphere that protects the communications if the President is to get blunt, candid advice upon which wise decision making depends.” The White House argues that public disclosure of information to the degree sought by Judicial Watch would “chill future deliberations by senior by senior Presidential advisers who would fear that their candid comments or their disagreements might some day be disclosed publicly or in litigation.”
The developments in the Judicial Watch lawsuit are significant. Several Members of Congress have sought to obtain similar information about the NEPDG, and the U.S. Comptroller General has indicated that he will file a lawsuit to force the release of similar records.
