Energy's big tease

The department releases a list of documents it won't give the public, as critics complain of more stonewalling.

By Megan Twohey
Published April 26, 2002 1:54PM (EDT)

Within hours of a court-ordered Thursday deadline, the Department of Energy released a list of all the documents pertaining to Vice President Dick Cheney's energy task force that it has refused to disclose, along with the reasons why the documents would remain private.

But those reasons were vague -- at times, in fact, downright inscrutable -- which has left the National Resources Defense Council, a plaintiff in the Freedom of Information Act suit against the department, unsatisfied. Late Thursday evening, the NRDC vowed to drag the federal agency back to court.

"There's still one big set of documents that they continue to withhold," said Sharon Buccino, an attorney with the NRDC. Specifically, Buccino said, the Energy Department refuses to release documents pertaining to the actions of Andrew Lundquist, executive director of the energy task force, and other top energy officials in charge of the effort.

"That glaring omission remains," she said.

In a Feb. 27 ruling, U.S. District Court Judge Gladys Kessler gave the Energy Department until April 25 to release the list of withheld documents. The agency has released two batches of court-ordered documents. Nearly 11,000 pages of documents were released on March 25. An additional 1,000 were released in early April. But key documents or pieces of them were not released or blacked out -- leaving the NRDC and Judicial Watch, a fellow plaintiff in the FOIA suit, unsatisfied.

Judicial Watch said it had received copies of the documents Thursday, but the organization has yet to comment on them.

The Energy Department's list describes more than 4,300 documents that are being kept secret, including e-mails, memoranda and letters. "[Energy] withheld each document or portion of a document based on well-established exemptions from disclosure set forth in the Freedom of Information Act," the department said through a press release. They include exemptions "for private personal information, security-related information, and pre-decisional materials relating to the agency's deliberative process," the statement said.

An initial skim of the list shows that the department's main defense for withholding documents was the latter. In line after line, the department listed documents of internal comments, recommendations and views made within the agency before it delivered its official National Energy Policy. Deliberative privilege, it claims, exempts that information from FOIA requests.

A typical example was a citation titled "The White House Correspondence Tracking Worksheet," dated June 6, 2001. The listed subject was "Concern About the National Energy Policy Development Group Recommendation on Nuclear Waste." It was withheld from the public, according to the Energy Department's list, because it was a "[p]re-decisional document withheld containing views, comments or recommendations pertaining to drafting of National Energy Policy."

"In certain circumstances [the exemption] is justifiable," Buccino said. "But we need to analyze each circumstance. The whole reason for the request is to evaluate whether their claims are justifiable. We're not going to take the government's word that they've complied."

Certain items on the list appeared easy targets for challenge, including the summary of document No. 884, for which the Energy Department gave virtually no reason for why it withheld it from public viewing. "Document determined to be non-responsive to FOIA request," was all the agency reported.

The item is "a red flag," says Buccino. "We'll tell the judge they haven't provided enough information. They've withheld in the past and are likely to continue to keep critical pieces of the puzzle secret."

Should the NRDC and Judicial Watch challenge the Energy Department's defense in court, it will be the agency's job to prove that its arguments are sound, says Thomas Susman, a lawyer with Ropes & Grey, and an FOIA expert.

"The burden of proof is always on the agency," Susman says.

The new batch of materials released by the Energy Department included hundreds of pages of e-mails and documents passed between department officials and people outside the agency. Since the first round of documents was released, the NRDC has been demanding that all external communications be made public, arguing that such material is not covered by the deliberative privilege.

"DOE has released to date over 12,000 pages of documents relating to its participation in the National Energy Policy," the Energy press release said. "In addition, as the released documents show, all preliminary drafts of chapters were circulated only within the government."

Among the material released was a marked-up copy of a list of recommendations for a National Energy Policy submitted by the American Gas Association. It appears as if the recommendation was edited and used in energy legislation introduced by Sen. Frank Murkowski, R-Alaska.

"The bill introduced by Senator Murkowski contains almost every provision recommended by AGA," says another AGA document. "Although much effort has already been invested, introduction of the Murkowski bill is only the starting point in the legislative process. AGA staff will work closely with Senator Murkowski, his staff, other senators, members of the House of Representatives, and the Bush administration in the weeks ahead to advance the AGA legislative proposals."

Megan Twohey

Megan Twohey is a writer in Washington. She was formerly a staff writer for the National Journal and the Moscow Times.

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