The Department of Energy had barely released more than 1,000 additional pages of documents pertaining to Vice President Dick Cheney's energy task force before the Natural Resources Defense Council again complained that the DOE was withholding information.
"They continue to play games, and stonewall, and not turn over the information that the public is legally entitled to," says Sharon Buccino, an attorney with the NRDC, plaintiffs in the Freedom of Information Act suit against the department that has forced it to disclose thousands of documents describing its interactions with energy industry officials and lobbyists.
Buccino says one of the new documents appears to call into question the Department of Energy's claim that environmentalists had an equal role in the process of formulating the administration's energy plan. She says it indicates that the task force could only have spent a day and a half reviewing the environmentalists' proposals, and that the task force was only prepared to go along with environmentalists' recommendations that matched up with what it had already decided would be its policy.
A March 21, 2001, e-mail from DOE Assistant Secretary for Policy Margot Anderson sent to Peter Karpoff in the department's policy office asks:
"Peter, Can you contact these groups and get them to send you any energy policy options they're advocating? Can you then review the proposals and recommend some we might like to support that are consistent with the administration energy statements to date? You can add others to the list, should you so desire ... need by Friday noon.
The groups on Anderson's list include the Sierra Club, Greenpeace, the World Wildlife Fund and with a handful of others.
The DOE and the White House have maintained that environmentalists had input in the task force process, while environmental groups, including members on Anderson's list, claim they were left out of the process completely.
Anderson's pressing for the tight deadline does not necessarily mean environmentalists were only considered at the last minute -- the energy task force did not release its final recommendations until May 2001. But Buccino says the e-mail shows the administration was not open to new ideas from environmental groups.
The document release was ordered by U.S. District Court Judge Gladys Kessler in a Feb. 27 ruling. Nearly 11,000 pages of documents were released on March 25. By April 25, the department is required to produce a what is called a Vaughn Index -- a list of all of the documents that were withheld or redacted by the department, and a brief explanation of why.
That, NRDC attorneys say, is when the next round of court battles could begin. "As for materials that they've held back, we're expecting, according to the judge's order, a detailed log no later than April 25 that explains the basis for whiting out various things or not producing pages," said NRDC attorney Jon Devine. "We'll have to look at that in detail and what they're claiming as privilege. Our initial run through the [first batch of] documents suggests that there may be some cases where they withheld material that came from or went to someone outside the government, and it's hard to call that internal," he said.
NRDC spokesman Rob Perks cited one e-mail released in the documents last month that listed an attached Microsoft Word document that apparently originated from a coal industry lobbyist. The attached document was missing, but Devine says that since it originated from an outside source, it can hardly be considered confidential government information. "We identified a few examples of things like that we think indicate they were over-broad in defining what was privileged information," said Devine.
Buccino says the NRDC will inevitably wind up in court again, challenging the department's withholding of numerous documents for what the NRDC believes are not legitimate reasons. "We have to decide whether we'll go back to court, or wait until the 25th. That's a decision we haven't made yet. We are going to back to court. It's a matter of when, not if."
The Department of Energy did not return calls from Salon seeking comment.
Among the documents most aggressively sought by NRDC are the appointment books of task force members who were Department of Energy employees. "One other critical issue that we flagged for them is that they didn't include the calendars for energy task force executive director Andrew Lundquist and the other staff of the task force," Buccino said. "There really is no basis for withholding that information. That could be quite revealing, because that's the first glimpse into what was happening in the White House, and who they were meeting with."
Buccino said late Wednesday that the calendars were not included in the latest round of documents, either, and that NRDC would certainly be heading back to court to try to obtain those records. The group will offer their full analysis of the new documents at a Washington press conference Thursday afternoon.
The fight over appointment books will continue in two other lawsuits, including one brought by the government watchdog group Judicial Watch. Judicial Watch has two cases working through the courts: one, a Freedom of Information Act suit in which Judge Paul Friedman ruled in its favor, and another more wide-ranging case claiming the Energy Task Force violated the Federal Advisory Committee Act. Section 2(b)(5) of that statute states, "the Congress and the public should be kept informed with respect to the number, purpose, membership, activities, and cost of advisory committees."
The FACA case is set to be heard on May 2. The General Accounting Office has a similar case pending against the administration's energy task force.
Judicial Watch spokesman Brian Doherty says the FACA case may ultimately provide the most revealing information about the task force, the details of which the administration has fought desperately to keep secret.
"We wanted almost all documentation regarding those meetings -- the minutes, the notes, the phone logs. Part of that is in the FACA lawsuit. I guess you would get more of the notes of the meetings and the appointment logs, that sort of thing from the FACA request than the FOIA," Doherty said.
While NRDC has complained that the documents released have been incomplete and heavily edited, they say they still have been valuable. "Some of them show pretty clearly the fingerprints that industry had on the plan," Devine said. "In one case, there was an e-mail from an industry executive transmitting a draft executive order, which in form and substance ended up being signed by the president."
Devine is referring to an e-mail from American Petroleum Institute lobbyist Jim Ford, in which Ford refers to an attached document as "a suggested executive order to ensure that energy implications are considered and acted on in rulemakings and other executive actions."
Bush later signed an executive order that was very similar to Ford's draft. The NRDC provided a side-by-side comparison of the two documents on its Web site.
Since Judicial Watch's first court victory, there has been a trickle of documents from other agencies as well. That case requested documents, not just from the Department of Energy, but also from the Department of the Interior, the Department of Agriculture, the Office of Management and Budget and others. Judge Friedman gave the Commerce and Transportation departments until May 3 to produce any documents those agencies had pertaining to the task force.
But Doherty says the list of documents that are not released may ultimately be more revealing than the documents that are. "I think that there will be a tremendous interest in getting that Vaughn Index for EPA and Energy," he says. "I know that's what a lot of the reporters are waiting for."