November 29, 2004—Public interest organizations, including archives, library, and journalists' groups, today filed an amici curiae brief with the District of Columbia Circuit Court of Appeals. The amici support public access to information about the makeup of the National Energy Policy Development Group (NEPDG), convened by Vice President Cheney in 2001. The amici joining in this brief believe the case is vital to preserving public access to government information under the Federal Advisory Committee Act (FACA) and share the conviction that broad access to government records protects values that are essential to representative democracy and promotes public participation in public policy.
The case was brought by the Sierra Club and Judicial Watch and heard at the United States Supreme Court in April 2004. The Supreme Court, recognizing the importance of the issue and the conflicting principles of separation of powers and public accountability, sent the case back to the DC Circuit Court of Appeals for adjudication.
The amici argue that the District Court should accept the Supreme Court's invitation to develop an innovative procedure for accommodating the competing interests asserted in this case. The amici recommend following the familiar model of the “Vaughn Index” used in Freedom of Information Act cases by the government to identify basic information without compromising confidentiality. That kind of information, in a “Cheney Log,” should provide a sufficient basis to evaluate whether non-government persons participated in meetings of the NEPDG or its sub-groups. If they did, participation would trigger FACA disclosure requirements that protect against the improper influence of special interests on government decision-making.
The brief states that, “When important constitutional principles are on a collision course, as in this case, courts should be wary of any winner-take-all resolution. The judicial goal in this case should be accommodation of the competing principles, not the exaltation of one and the obliteration of the other. Requiring the Cheney Log, based on the successful example of the Vaughn Index, promises such an effective accommodation.”
Download the brief (PDF)
The amici are the American Association of Law Libraries, the American Booksellers Foundation for Free Expression, the American Library Association, the Association of Research Libraries, the Center for American Progress, the DTK Liberty Project, the National Security Archive, OMB Watch, the Society of American Archivists, and the Society of Professional Journalists.
Press Release Contact List:
Society of American Archivists
Nancy Beaumont, Executive Director
American Association of Law Libraries
Robert L. Oakley, Director of the Law Library and Professor of Law
Georgetown University Law Center
Edward Bennett Williams Library
American Booksellers Foundation for Free Expression
Chris Finan, President
American Library Association
Patrice McDermott, Deputy Director, Office of Government Relations
Association of Research Libraries
Prudence S. Adler, Associate Executive Director
Center for American Progress
Mark David Agrast, Senior Vice President for Domestic Policy
DKT Liberty Project
Philip D. Harvey, President
National Security Archive
Meredith Fuchs, General Counsel
Sean Moulton, Senior Policy Analyst
Society of Professional Journalists (SPJ)
Irwin Gratz, President
See also: Background to Cheney Supreme Court Case