Appeals Court Dismisses Lawsuit Filed Against Cheney Task Force

On May 10, the U.S. Court of Appeals for the District of Columbia Circuit dismissed a lawsuit filed in 2004 by a coalition of public interest groups that urged the court to order Vice President Dick Cheney to reveal the names of the people who participated in meetings of an energy task force he appointed in 2001. The American Booksellers Foundation for Free Expression (ABFFE) and other organizations had filed an amicus brief proposing a compromise in the case.

In 2004, the Sierra Club and Judicial Watch sued Vice President Cheney when he refused to reveal any information about the operations of his National Energy Policy Development Group (NEPDG). There was speculation at the time that representatives of the oil and gas industry participated in the policy discussions of the group and offered advice to the government, which would make NEPDG subject to open meeting requirements of the Federal Advisory Committee Act (FACA). FACA was designed to eliminate the ability of special interest groups to secretly influence the government by requiring full disclosure of the membership and proceedings of any advisory committees that include non-government personnel.

In November 2004, an amicus brief was filed by ABFFE, the American Library Association, the Society of Professional Journalists, and others that proposed a compromise that would protect the separation of powers while maintaining public accountability. It asked the court to order Cheney to prepare a log indicating the dates of all meetings of the NEPDG with a list of who attended the meetings. If outsiders were involved, Sierra Club could then request the release of documents relating to their participation.

"We are very disappointed in this decision because it appears to undermine a law that is designed to ensure that the operations of our government are open to public scrutiny and debate," said ABFFE President Chris Finan. "Surely, the public is entitled to know who is participating in meetings of these advisory committees that are shaping national policy, whether they are 'official' members or not."

The Vice President had maintained that his task force was not an advisory committee and that being forced to reveal information about its operation would violate the separation of powers, undermining the executive branch's ability to solicit advice without interference by the courts.

In its decision, the appeals court ruled that the plaintiffs had failed to establish any duty owed to them by the federal government under FACA. The court noted that a government committee that consists of federal employee members is not therefore subject to FACA simply because an outsider participates in the committee meetings, as long as the outsider does not have a vote on the committee.