Executive privilege

In May 2001, Vice President Dick Cheney released the final report of the National Energy Policy Development Group, which set forth detailed recommendations to guide all aspects of the Bush administration's long-term energy policies. The formal membership of the group was limited to 14 senior administration officials, operating under the auspices of the Energy Department.

Members of the formal group met with, and obtained input from, numerous private individuals and groups, including the failed energy company Enron.

In April 2001, just before the final report was issued, the Natural Resources Defense Council made a Freedom of Information Act (FOIA) request for copies of all documents related to the group's work. However, the administration failed to respond, and NRDC sued the DOE in December 2001 to obtain the documents.

Last week, the General Accounting Office announced it would sue the administration, seeking the same records. As the basis for its lawsuit, GAO is relying on the Federal Advisory Committee Act (FACA). Under FACA, an "advisory committee" includes any group "utilized" by a federal agency that is "established or utilized by the president," or "established or utilized by one or more agencies, in the interest of obtaining advice or recommendations for the president or one or more agencies or officers of the federal government," unless "composed wholly of full-time officers or employees of the federal government."

Among other things, FACA requires that all aspects of an advisory committee's work must be made public. In 1993, President Clinton's task force on national health care reform shut down after a lawsuit under FACA forced it to operate in public.

The administration has been arguing that the records of the National Energy Policy Development Group are protected from public disclosure by virtue of "executive privilege." According to the U.S. Supreme Court, this privilege may exempt the group from releasing internal governmental advice, recommendations and opinions that are part of the deliberative, consultative, decision-making processes of the government.

The purpose of extending this privilege to federal executives is to protect the quality of agency decisions by encouraging open, frank discussions on policy matters between subordinates and their chiefs, to prevent premature disclosure of proposed policies before they are finally adopted and to prevent public confusion by disclosure of reasons and rationales that were not in fact the actual reasons for the agency's actions.

However, the privilege is only applicable to "interagency or intra-agency memorandums or letters." It does not apply to documents submitted by individuals and groups from outside the government. Furthermore, although the privilege is recognized under FOIA, there is no similar privilege within FACA.

For these reasons, it is virtually impossible to understand how the administration thinks it is going to keep the requested documents out of the public eye. It is almost as hard to understand why administration officials would want to do that. It is well past time that they release these documents.

Peckinpaugh is corporate counsel for DynCorp in Reston, Va. This column represents his personal views.


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