IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
JUDICIAL WATCH, INC.,
Plaintiff, Civil Action No.
01-1530
(EGS)
v.
NATIONAL ENERGY POLICY
DEVELOPMENT GROUP, et al.,
Defendants.
__________________________________________
__________________________________________
SIERRA CLUB,
Plaintiff, Civil Action No.
02-0631
(EGS)
v.
VICE PRESIDENT RICHARD
CHENEY, in his official capacity, et al.,
Defendants.
__________________________________________
PLAINTIFF JUDICIAL WATCH’S MOTION TO COMPEL
AND MOTION FOR ORDER TO SHOW CAUSE WHY DEFENDANTS SHOULD
NOT BE HELD IN CONTEMPT AND FOR SANCTIONS
Plaintiff Judicial Watch (“JW”), by
counsel and pursuant to the Court’s Order of September 11, 2002, respectfully
submits this Motion To Compel and Motion For Order To Show Cause Why Defendants
National Energy Policy Development Group, Vice President Richard Cheney, Andrew
Lundquist, Joshua Bolton, and Larry Lindsey (collectively the “Executive
Defendants”) Should Not Be Held In Contempt And For Sanctions. As grounds
therefor, Plaintiff JW states as follows:
MEMORANDUM OF LAW
I. Introduction.
At the August 2, 2002, status hearing held in
this matter, the Court approved the joint
discovery plan proposed by the Plaintiffs JW and Sierra Club. During
that hearing, the Court ordered Defendants to either respond to Plaintiffs’
discovery requests within thirty (30) days or file detailed, specific
objections to Plaintiffs’ requests. Specifically, the Court stated:
I’ll give the government 30 days from
the date that the document request is propounded and 30 days from the date that
the interrogatories are propounded to file objections in the appropriate
manner, and if the government asserts privilege with respect to a request for
document production or interrogatory, then the government is going to have to,
with precision, tell the Court and tell the parties just exactly what the basis
of the objection is.
In other words, it’s not appropriate to say
executive privilege without more. It’s not appropriate to say this request is
unconstitutional, or pursuant to the Constitution, no response is required.
That’s not appropriate. I need to know, for the third or fourth time, what the
basis is for either a response saying this is protected by privilege or this
intrudes upon some constitutional protections that should not be intruded on,
and I’m not going to sit up here and tell the government how to respond to
discovery. There are excellent attorneys at government counsel table. They know
exactly what should and should not be done.
Transcript of August 2, 2002 Hearing at
29-30.
In an ensuing written Order filed by the
Court that same day, the Court reiterated that:
Defendants shall fully comply with these
requests, or file detailed and precise objections to particular requests with
this Court. Should they object to any of these requests, Defendants shall not
make general invocations of privilege with respect to categories of documents
or questions, but must identify and explain their invocations of privilege with
particularity...
See August 2, 2002 Order at 2.
Unfortunately, as Plaintiffs predicted at the
conclusion of August 2, 2002 hearing, the Executive Defendants allowed the
thirty (30) days allotted to them to respond to Plaintiffs’ discovery requests
to elapse before filing a frivolous motion for a protective order, thereby
defying this Court’s oral and written orders. Specifically, on September 3,
2002, the Executive Defendants filed a Motion for a Protective Order and for
Reconsideration of the Court’s August 2, 2002 Order. The Executive Defendants
therefore not only failed to produce documents and provide specific detailed
objections to Plaintiffs’ court-approved discovery requests, they filed in bad
faith a frivolous motion which relies on the same failed arguments which have
already been rejected by this Court on several occasions, most recently in the
Court’s Order of July 11, 2002.[1]
In addition, because the Executive Defendants failed to object to Plaintiffs’
discovery requests as ordered by the Court, they have waived any objections to
those requests, and should be required to turn over all responsive documents to
Plaintiffs immediately.
Defendants Paul O’Neill, Gail Norton, Ann M.
Veneman, Donald Evans, Norman Mineta, Spencer Abraham, Colin Powell, Joseph M.
Allbaugh, Christine Todd Whitman, and Patrick H. Wood, III (collectively, the
“Agency Defendants”), produced some documents to Plaintiffs on September 3,
2002. However, the privilege logs produced by the Agency Defendants are
woefully inadequate and thus represent yet another instance of the Defendants’
failure to obey this Court’s orders, as well as established professional norms
and precedent. Also absent from the Agency Defendants’ responses are numerous
documents concerning third party
communications, which are clearly not covered by the deliberative process
privilege or any other privilege.
Plaintiff JW respectfully submits that the
Executive Defendants’ most recent conduct in this matter represents yet another
attempt to further delay this proceeding, one which calls for the issuance of
an order to show cause why the Executive Defendants should not be held in
contempt. The Agency Defendants are
likewise continuing their efforts to thwart the discovery ordered by this
Court, by failing to turn over all responsive documents and submitting
inadequate privilege logs to Plaintiffs. Defendants’ strategy is obvious; to
push the completion of discovery in this important matter past the November 5,
2002 elections. While Plaintiff JW has
no concern with the 2002 elections, JW respectfully submits that the public has
right to to know about the composition
and functioning of the National Energy Policy Development Group (“NEPDG”)
without any further delay.[2]
II. Discussion.
A. Plaintiffs’
Discovery Requests.
The Agency Defendants withhold
a broad range of documents, primarily on the basis of the deliberative process
privilege. The agencies’ privilege logs, however, do not contain sufficient
information to determine whether that, or any other, privilege applies.[3]
The result of that failure is, once again, delay. Plaintiff JW therefore moves
for an order compelling the agencies to provide privilege logs sufficiently
detailed to allow plaintiffs and the Court to “sensibly determine whether each
invocation of [privilege] is properly grounded.” Senate of Puerto Rico v.
U.S. Dep’t of Justice, 832 F.2d 574, 584 (D.C. Cir. 1987).
Because the Agency
Defendants’ logs contain so little specific information, Plaintiff JW is not in
a position to move for production of individual documents. Plaintiff JW also
moves, however, for an order compelling production of all documents responsive
to plaintiffs’ fifth and sixth requests for production; that is, those
documents that concern communications from nonfederal employees. Plaintiff JW makes that request for three
reasons. First, the deliberative process privilege – upon defendants rely
almost exclusively – does not apply in a case, such as this one, that directly
concerns the propriety of government decision-making. See In re
Subpoena Duces Tecum, 145 F.3d 1422, 1424-25 (D.C. Cir. 1998), modified in
part on reh’g by 156 F.3d 1279. It therefore provides no grounds to withhold
information concerning the extent and nature of the Agency Defendants’ contact
with outside parties – the most fundamental evidence at this stage of the
litigation.
That evidence is
discoverable, second, because the deliberative process privilege by its terms
does not apply to information from non-agency personnel. See U.S.
Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1,
12-13 (2001). And, third, immediate production of the requested information
will best answer both the Court’s request for focused discovery and Plaintiffs’
desire for expeditious resolution of this litigation.
B. Agency
Responses to Plaintiffs’ Discovery Requests.
The Agency Defendants
responded to Plaintiffs’ first set of document requests by disclosing a limited
set of documents, many of which had already made public, and by proffering
privilege logs listing tens of thousands of responsive, but withheld,
documents. [4] Almost
all those documents are withheld on the basis of the “deliberative process”
privilege, though the logs include a handful of invocations of attorney-client
and state-secrets privileges.
The privilege logs’
entries are for the most part conclusory and uninformative, providing at most a
document number, date, author, addressee, a brief title for the document, and a
statement that the document is being withheld, along with the name of a
privilege and recitation of its elements. The following are exemplary entries
from the logs:
-- “Date: April 29, 2001;
Author/Source: Stephen Gallogly; Addressee/Recipient: Col.Smullen; Nature/Subject:
Memo to Col. Smullen; Objection/Privilege: State Secrets, Deliberative
Process.” State Department Privilege Log (“State Log”) Doc. No. 1.
-- “Document entitled
‘Bonneville Power Administration – Green Tag Summary,’ dated March 2001.
Information withheld consists of deliberative material reflecting the process
of commenting, recommending and revising draft documents relating to NEPDG. 1
page. #4640. Withheld.” Department of Energy Privilege Log (“Energy
Log”) Doc. No. 444, at p.
5.
-- “Document Type: e-mail;
Author/Recipient: Jeff Wiese/Beth Callsen, Le Herrick;
Author’s Agency: Unknown;
Pages: 1; Description and Basis for Withholding: b5
Subject: US Energy
Association. Exemption b5 protects inter-agency or intra-agency
communications, made in
the course of preparing the ‘Report of the National Energy
Policy Development Group,’
that is predecisional and its release would interfere with
the deliberative process
of this agency.” Department of Transportation Privilege Log
(“Trans. Log”) Doc. No. 108
at p.22.
--“Date: undated;
Author/Source: presumed Federal Government; author/source not
identified;
Addressee/Recipient: no addresses; recipient not identified; Nature/Subject:
Proposed recommendation and analysis on Reformulated Gasoline
and Boutique Fuels;
Withheld – Deliberative Privilege.” Office of Management and
the Budget Privilege Log
(“OMB Log”) Bates Nos. OMB003-0008-0009.
--Pages: 12;
Author/Sender: Lorie Schmidt, OPAR, OAR, U.S. EPA; Description:
Draft Briefing Paper(s)
re. Staff recommendation on issue(s) concerning NEP Report.Deliberative Process
Privilege; predecisional and deliberative communication. Disclosure would chill
frank and open discussion; cause public confusion about reasons for decision.
To the best of our knowledge, this document has not been shared outside of the
U.S. Government.” Environmental Protection Agency Privilege Log (“EPA Log”)
Bates Nos. 002461-002472.
--“Date: April 3, 2001;
Author/Source: James_Meitus@omb.eop.gov; Addressee/Recipient:
ray.squieteri@do.treas.gov; Nature/Subject: Email with subject‘New Source
Review: TVA is a $1 billion stakeholder – comments coming’;
Objection/Privilege:
Withheld – Deliberative Process.” Department of the Treasury
Privilege Log (“Treasury
Log”) Bates Nos. TRE048-0029 to 0030.
Many entries lack even the
most basic of information regarding the withheld documents. E.g.,
--“Date: Not Stated;
Author/Source: Not Stated; Addressee/Recipient: Not Stated;
Nature/Subject: Report
entitled ‘Why price caps are bad for consumers’;Objection/Privilege: Withheld –
Deliberative Process.” Treasury Log Bates Nos. TRE-002-004.
--“Undated document entitled
‘Over-riding Principle.’ Information withheld consists of deliberative material
reflecting the author’s comments, recommendations, and suggestions relating to
preparation of draft NEPDG report. 1 page, #4694.” Energy Log Doc. No. 457, at
p. 52.
--“Date: April 4, 2001;
Author/Source: Unknown; Addressee/Recipient: none;
Nature/Subject: Bush
Energy Initiatives; Objection/Privilege: Deliberative Process.”
State Log Doc. No. 32.
Plaintiffs have requested more detailed
privilege logs from Defendants, who refused, asserting that “Defendants’ privilege logs comport with the
requirements of Rule 33.” See Plaintiff Sierra Club’s Brief in Support
of Motion to Compel (“Sierra Club Br.”) at 4.
C. Responses
to Interrogatories.
The Agency Defendants also
provided responses to Plaintiffs’ first set of interrogatories, which advert to
“executive and deliberative privileges,” e.g. Defendant DOE’s Response to
Plaintiffs’ First Set of Interrogatories at 2. They do not, however, indicate
what information is being withheld, or why. Furthermore, the Agency Defendants’
interrogatory responses do not include any information regarding meetings of
agency employees with non-federal persons. See Exhibit B to Declaration
of Sanjay Narayan, attached to Sierra Club Br.
D. The
Agency Defendants Must Provide More Detailed Privilege Logs or Produce the
Withheld Documents.
The Agency Defendants’
privilege logs are inadequate. First Am. Corp. v. Al-Nahyan, 2 F. Supp.
2d 58, 63 n.5 (D.D.C. 1998) (“In practical terms, [Rule 26(b)(5)] means that the
party resisting disclosure must produce some sort of privilege log” holding
“sufficient information to allow the court to rule intelligently on the
privilege claim.” (citation omitted)). To sustain a claim of privilege in this
circuit, a federal agency must provide:
(1) a formal claim of
privilege by the head of the department having control over
the requested information;
(2) assertion of the privilege based on actual personal
consideration by that
official; and (3) a detailed specification of the information
for which the privilege is
claimed with an explanation why it properly falls within
the scope of the
privilege.
Tuite v. Henry, 98 F.3d 1411, 1417 (D.C.
Cir. 1996) (emphasis added and citation omitted). The privilege logs furnished
by the Agency Defendants do not contain a description – much less a “detailed
specification” – of the information withheld. Nor do they justify their
invocations of privilege, especially in light of the stringent standards this
circuit applies to the deliberative process privilege. See In re
United States, 872 F.2d 472, 479-80 (D.C. Cir. 1989) (“Because evidentiary
privileges by their very nature hinder the ascertainment of truth, and may even
torpedo it entirely, their exercise ‘should in every instance be limited to
their narrowest purpose.’” (citation omitted)).
1. The Deliberative Process Privilege.
The deliberate process
privilege protects “subjective documents which reflect the personal opinions of
the writer rather than the policy of the agency.” Coastal States Gas Corp.
v. U.S. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). The purpose of
the privilege “is to ‘encourage free exchange of ideas during the process of
deliberation and policy making’ and thus to ‘prevent injury to the quality of
agency decisions.’” 26A Wright & Miller Fed. Prac. & Proc. Evid. § 5680
(noting that “[t]he deliberative process privilege should seldom be upheld in a
case where there is any need for the evidence because it rests on such a puny
instrumental rationale”) (citations omitted). Cf. Coastal States, 617
F.2d at 868 (noting that Congress, in enacting deliberative process privilege
as part of Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”), intended to
delimit the privilege “as narrowly as [is] consistent with efficient government
operation”). In keeping with those purposes, the privilege protects only
against “collateral attack”; it applies in cases “where the governmental
decisionmaking process is collateral to the plaintiff’s suit.” In re
Subpoena Duces Tecum, 145 F.3d at 1424-25.
Whether a particular
document is protected by the privilege depends two factors: first, “whether the
document is ‘predecisional[,]’ whether it was generated before the adoption of
an agency policy”; and, second, “whether the document is ‘deliberative[,]’
whether it reflects the give-and-take of the consultative process.” Coastal
States, 617 F.2d at 866. In making those determinations, courts consider:
“whether the document is so candid and personal in nature that public
disclosure is likely in the future to stifle honest and frank communication
within the agency”; “whether the document is recommendatory in nature or is a
draft of what will become a final document”; and “whether the document is
deliberative in nature, weighing the pros and cons of agency adoption of one
viewpoint or another.” And “even if the document is predecisional at the time
it is prepared, it can lose that status if it is adopted, formally or
informally, as the agency position on an issue or is used by the agency in its
dealings with the public.” Id. In short, whether the deliberative process
privilege applies depends upon the specifics of each withheld document and its
role in the agency decision-making process. See Id. at 867.
2. The Agency Defendants’ Privilege Logs Do Not Contain
Sufficient Information to Determine Whether the
Deliberative Process Privilege Applies.
The Agency Defendants’
privilege logs do not substantiate the claimed deliberative process privileges.
“[T]he agency has the burden of establishing what deliberative process is
involved, and the role played by the documents in issue in the course of that
process.” Id. at 868 (citation omitted). And the nature of the deliberative
process privilege demands detailed information regarding each withheld
document. “The need to describe each withheld document when [the deliberative
process privilege] is at issue is particularly acute because ‘the deliberative
process privilege is so dependent upon the individual document and the role it
plays in the administrative process.” Animal Legal Defense Fund v.
Department of the Air Force, 44 F. Supp. 2d 295, 299 (D.D.C. 1999) (quoting
Coastal States, 617 F.2d at 867).
Accordingly, “‘conclusory
assertions of privilege will not suffice to carry’ the agency’s burden.” Senate
of Puerto Rico, 823 F.2d at 585. And the agencies’ privilege logs contain
only the most conclusory of assertions; a statement that the withheld
information is “deliberative,” in some cases accompanied by a rote description
of the legal standard for the privilege’s application. E.g., EPA Log Bates Nos.
002461-002472. Animal Legal Defense Fund, 44 F. Supp. 2d at 302-3
(rejecting assertion of privilege that “simply paraphrases in conclusory terms
the formal legal requirements”). There are no facts in the privilege logs to
suggest that the withheld information is so candid and personal in nature that
its release would inhibit agency decision-making. There are no facts to
indicate that the withheld information is recommendatory in nature, or whether
it was formally or informally adopted by the agency. There are no facts to
indicate that the withheld information weighs the pros and cons of different
agency positions. See Coastal States, 617 F.2d at 866. Indeed, aside
from authors and dates, there are virtually no facts.
As the U.S. Court of
Appeals for the District of Columbia Circuit (“D.C. Circuit”) has held:
[I]t is enough to observe
that where no factual support is provided for an essential
element of the claimed
privilege or shield, the label “conclusory” is surely apt.
The information provided
by the [agency] – consisting almost entirely of each
document’s issue date, its
author and intended recipient, and the briefest of
references to its subject
matter – will not do.
Senate of Puerto Rico, 823 F.2d at 585. The
description above fits the vast majority of the entries in the Agency
Defendants’ privilege logs, which are indistinguishable from those rejected in Senate
of Puerto Rico. Compare, e.g., id. at 589 (Appendix showing rejected
privilege entries) with Energy Log Doc. No. 444, at p. 5. Indeed, many of the
Agency Defendants’ entries contain neither a date nor an author. E.g.,
Trans. Log Doc No. 1, at p.1 (Bates Nos. 007-1317).
The logs consequently lack
the information required for Plaintiffs or this Court to determine whether or
not the privilege applies, or even what information the government here seeks
to protect. Senate of Puerto Rico, 823 F.2d 574, 584. There are two
areas in which the paucity of information in the Agency Defendants’ privilege
log is particularly problematic:
Our case law . . .
identifies two factors that can assist the court in determining
whether [the deliberative
process] privilege is available: the “nature of the
decisionmaking authority
vested in the officer or person issuing the disputed
document,” and the
relative positions in the agency’s “chain of command”
occupied by the document’s
author and recipient.
Id. at 586 (noting that
information passed “from ‘subordinate’ to ‘superior’ [is] more likely to be
deliberative in character
than documents traveling in the opposite direction”) (citations omitted).
Lacking that information,
it is impossible to evaluate the agencies’ gnomic assertions that the withheld
documents are, in fact, deliberative in nature.[5] Plaintiff JW requests, therefore, an order
compelling the agency defendants to provide privilege logs meeting the
standards set out in Senate of Puerto Rico for each document withheld
under a claimed deliberative process privilege.
E. The Agency
Defendants’ Have Not Properly Substantiated Their Claims of Attorney-Client
and State Secrets Privileges.
1.
Attorney-Client Privilege.
The Agency Defendants make
infrequent resort to the attorney-client privilege. They do not provide
sufficient information to support that claim of privilege. The Treasury Log,
for example, claims attorney-client privilege for a “Draft letter regarding
‘Freedom of Information Act,” authored by John C. Hambor, of the Office of
Microeconomic Analysis, and sent to Judy Pasternak, of the Los Angeles Times.
Treasury Log Bates Nos. 002-0001 to 0002. That description is insufficient to
determine even whether Mr. Hambor is an attorney, much less how Ms. Pasternak
could be a client. Similarly, the Environmental Protection Agency claims the
attorney-client privilege for “editorial comments” by its attorneys, stating
only that the author is an attorney and that the document contains “legal
advice [and] analysis.” E.g., EPA Privilege Log Bates Nos. 003052-003054, at p.
146 (“E-mail message re (w/attachment): Request for comment by EPA staff,
attorneys – New Request on Fuel Prices from CEQ”).
Within government
agencies, the attorney-client privilege applies only “[w]hen the government is
dealing with its attorneys as would any private party seeking advice to protect
personal interests.” In re Lindsey, 158 F.3d 1263, 1269 (D.C. Cir.
1998). In order “[t]o prevail on [an] attorney-client privilege claim . . . the
[agency] must establish that the information conveyed formed part of a
confidential communication to or by an attorney in the course of a professional
relationship.” Animal Legal Defense Fund, 44 F. Supp. 2d at 302. That
standard requires, at a minimum, “facts to substantiate the [agency’s] claim of
privilege,” id. at 303; a “description of the document’s general subject
matter,” id.; and facts indicating that the withheld “communication is based on
confidential information provided by the client,” Mead Data Central, Inc. v.
U.S. Dep’t of the Air Force, 566 F.2d 242, 254 (D.C. Cir. 1977). The Agency
Defendants’ have provided no such facts.
2. State-Secrets
Privilege.
The State Department,
alone, asserts a state-secrets privilege for numerous documents. Its
invocations are inscrutable, at times verging on hieroglyphic. E.g.,
State Log Doc. No. 3 (“IM2S NEP Update R2,” dated January 11, 2001, from Evelyn
Wheeler, to the Secretary, withheld as “state secrets, deliberative process”).
Again, more is required to sustain a claim of privilege. The state-secrets
privilege does not require the same sort of showing as other privileges, at
least where disclosure of authors, dates, and recipients would itself raise
national security concerns. See Linder v. National Sec. Agency,
94 F.3d 693, 697 (D.C. Cir. 1996). It does, however, require a substantial
foundation:
Because the privilege “is
not to be lightly invoked,” . . . each agency [must]
ma[k]e a "formal
claim of privilege, lodged by the head of the department which
has control over the
matter, after actual personal consideration by that officer.” . .
. [T]he court [must] make
sure that they either provide[] some form of detailed
public explanation of “the
kinds of injury to national security [they] seek[ ] to
avoid and the reason those
harms would result from revelation of the requested
information,” or
indicate[] “why such an explanation would itself endanger
national security.”
Linder v. Department of
Defense,
133 F.3d 17, 23 (D.C. Cir. 1998) (sixth and seventh alterations in original and
citations omitted). The State Department has not made that showing. Plaintiff
JW therefore asks the Court to compel the defendant agencies to provide
adequate explanations for their asserted attorney-client and state-secrets
privileges, providing details sufficient to assess the claimed privilege for
each withheld document.
F. The Asserted Privileges Do Not apply To Communications
From Non-Federal Employees.
Plaintiff JW further
requests an order compelling the Agency Defendants to disclose any documents,
or portions of documents, that concern communications from private, non-agency
persons. The deliberative process privilege cannot apply to such
communications, for two reasons. First,
the deliberative process does not apply at all to material evidence in a suit,
such as this one, in which the propriety of the government’s decision-making
processes is at issue. And, second, communications from outsiders cannot
qualify as part of the “give-and-take” of agency deliberations.
1. The Deliberative Process Privilege Does Not Apply To
Evidence in Cases Under the Federal Advisory Committee
Act.
The deliberative process
privilege cannot, as a matter of logic and law, apply to prevent all discovery
of government decision-making in this case. The central issue in this case, and
in any FACA case, is the government’s decision-making – broadly
speaking, its deliberations. In applying FACA’s provisions to any committee
“established or utilized” by the President or an agency, Congress intended to
ensure that “when an officer brings together a group by formal or informal
means, by contract or other arrangement, and whether or not Federal money is
expended, to obtain advice and information, such group is covered by the
provisions of this bill.” S. Rep. No. 1098, 92d Cong., 2d Sess. 8 (1972). See
Public Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 456 (1989) (FACA
originates in policy of attempting “to forestall [committees’] facilitation of
anticompetitive behavior by bringing industry leaders together with Government
approval”). FACA accordingly centers upon the manner in which the government
“obtain[s] advice and information,” and its relationship with “formal and
informal” groups that provide such advice and information – all of which are
part of the government’s decision-making process. S. Rep. No. 1098, 92d Cong.,
2d Sess. 8, 5 U.S.C. App. 2 §§ 3, 8 & 10. The deliberative process
privilege, if used to shield all information that touched upon that
decisionmaking process, would eviscerate judicial inquiry in this or any other
FACA case.
Thus, for example, the
discovery of the “purpose, structure, and personnel of the [working] group”
ordered by the D.C. Circuit in Association of Am. Physicians & Surgeons
v. Clinton would not be possible. 997 F.2d 898, 915 (D.C. Cir. 1993) (“AAPS
I”). See also Association of Am. Physicians & Surgeons v. Clinton,
837 F. Supp. 454, 456 (D.D.C. 1993) (“AAPS II”) (outlining discovery required
for FACA claim). The discovery of documents relating to “how [the Department of
Energy] may use the [committee] report, and, more specifically, how it will use
that report to influence continued federal appropriations,” ordered by this
District in Natural Resources Defense Council v. Curtis, would not be
possible. 189 F.R.D. 4, 11 (D.D.C. 1999). And the discovery of “whether any
additional materials fall within the parameters of information to which Cummock
is entitled” ordered by the Circuit in Cummock v. Gore would not have
been possible. 180 F.3d 282, 293 (D.C. Cir. 1999).[6]
The deliberative process
privilege does not operate to thwart such necessary discovery:
The [deliberative process]
privilege was fashioned in cases where the
governmental
decisionmaking process is collateral to the plaintiff’s suit. . . . [I]f
either the Constitution or
a statute makes the nature of government
decisionmaking the issue,
the privilege is a nonsequitur. The central purpose of
the privilege is to foster
government decisionmaking by protecting it from the
chill of potential
disclosure. If Congress creates a cause of action that
deliberatively exposes
government decisionmaking to the light, the privilege’s
raison d’être evaporates.
In re Subpoena Duces Tecum, 145 F.3d at 1424 (second
emphasis added). The court there dealt with the Bankruptcy Act, which makes
illegal “plan[s] to appropriate the assets of an insolvent debtor, while
holding the debtor’s creditors at bay.” Id. at 1425 n.2 (citation omitted). The
Officer of the Comptroller resisted discovery on the basis of the deliberative
process privilege. The D.C. Circuit held that “the deliberative process
privilege protects [only] against collateral attack.” Id. at 1425. Because the
lawsuit directly concerned government decision-making, discovery of that
decision-making was not a “collateral attack.” For that reason, the Circuit
held that “the [deliberative process] privilege does not enter the picture at
all.” Id.
The court in In re
Subpoena Duces Tecum, on rehearing, limited its holding to cases in
which the cause of action
was directed at “the agency’s subjective motivation.” 156 F.3d 1279-
80. The court’s reasoning,
however, applies with equal if not greater force to cases in which the cause of
action is directed squarely at the agency’s decision-making. A lawsuit under
FACA, like the lawsuit in In re Subpoena Duces Tecum, explicitly
implicates the government’s decisionmaking. FACA centers upon the sources of
the agencies’ policies, and the processes by which those policies were
developed. To the extent that the deliberative process privilege would prevent
disclosure of those sources and processes, the privilege is flatly inconsistent
with the cause of action itself.
Indeed, in enacting FACA
Congress much more plainly intended to “expose[] government decisionmaking to
the light” than it did by the Bankruptcy Act. Id. at 1424. See Public
Citizen, 491 U.S. at 459 (“FACA's principal purpose was to enhance the
public accountability of advisory committees established by the Executive
Branch”). As with In re Subpoena Duces Tecum, a privilege that prevents
disclosure of government decision-making – even though FACA makes that decision-making
central to plaintiffs’ cause of action – is a nonsequitur. Put differently,
“the deliberative process privilege is ‘a discretionary one,’” and it makes no
sense to apply that privilege to frustrate a cause of action created by
Congress. Texaco Puerto Rico, Inc. v. Department of Consumer Affairs, 60
F.3d 867, 885 (St. Cir. 1995) (“‘Where the
documents sought may shed light on alleged government malfeasance,’ the
privilege is routinely denied.” (emphases added)).
The Agency Defendants of course, contest Plaintiffs’ cause of
action under FACA; that does not bring the deliberative process back into play.
Even if “[t]here may well be a question as to [the applicability of the]
federal statutes,” the “district court has, at least preliminarily, ruled on that
issue by rejecting the government’s motion to dismiss the underlying
litigation.” In re Subpoena Duces Tecum, 145 F.3d at 1424-25. This Court
has ruled on Defendants’ motion to dismiss; after that decision, “[f]actual
information bearing on asserted violations of FACA . . . falls within the broad
discovery permitted of information which is reasonably likely to yield relevant
information,” Curtis, 189 F.R.D. at 10.
Permitting discovery and
leaving the question of the sufficiency of plaintiffs’ case
as a matter of law to a
point after discovery closes is the way in which the federal
courts handle such
matters. . . . [Plaintiffs] are not required to establish a legally
sufficient case of their
standing and of the applicability of FACA . . . as a
condition of securing
discovery and . . . resolution of the legal issues concerning
that applicability is
premature until discovery ends.
Id. at 9. Plaintiffs are
entitled to an opportunity to prove their case. The manner in which the Agency
Defendants’ seek to wield the deliberative process privilege would, in essence,
deny Plaintiffs that opportunity. For precisely that reason, “it makes no sense
to permit the government to use the privilege as a shield.” In re Subpoena
Duces Tecum, 145 F.3d at 1424.[7]
2. Communications From Outsiders Are Not Agency Deliberations
Subject to Any Deliberative Process
Privilege.
Even if the deliberative
process privilege applied in this litigation, it could not protect the
communications described by Plaintiffs’ discovery requests. Communications to
and from non-agency personnel are not part of the agency’s “consultative
process.” Coastal States, 617 F.2d at 866. The policy justification for
the privilege – preserving “honest and frank communication within the
agency,” id. (emphasis added) – does not apply to communications outside the
agency. And such communications do not meet the standards for application of
the privilege. See Id. (document loses any claim of privilege if it “is
used by the agency in its dealings with the public”).
The Supreme Court has
accordingly held that communications to and from non-agency persons cannot, as
a general matter, be withheld under the deliberative process privilege. Department
of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. at 12. The
Association in Klamath Water Users sought correspondence between the
Department and certain Native American tribes under FOIA, and the Department
invoked the deliberative process privilege, claiming that it covered
communications with the tribes. Id. at 6. The Supreme Court rejected that
claim. Recognizing that courts had allowed agencies to withhold some
communications involving agency “consultants,” the Supreme Court held that
communications with private persons could qualify for the deliberative process
privilege only under narrowly limited circumstances:
[C]onsultants whose
communications have typically been held exempt have not
been communicating with
the Government in their own interest or on behalf of
any person or group whose
interests might be affected by the Government action
addressed by the
consultant. . . . The Tribes, on the contrary, necessarily
communicate with the
Bureau with their own, albeit entirely legitimate, interest in
mind. While this fact
alone distinguishes tribal communications from the
consultants’ examples
recognized by several Courts of Appeals, the distinction is
even sharper, in that the
Tribes are self-advocates at the expense of others seeking
benefits inadequate to
satisfy everyone.
Id. at 12. Aside from
consultants without any interest that “might be affected” by the action at
issue, communications with
agency outsiders are therefore not subject to the deliberative process
exception under FOIA.[8]
Likewise, they should not
be subject to the deliberative process privilege here. The deliberative process
privilege is intended to enhance the candor of agency policymakers, not
the candor of outsiders who communicate with the agency. There is, accordingly,
no reason to extend the privilege to communications from outsiders. And
communications to outsiders are not part of any “give-and-take” of agency
decision-making. Coastal States, 617 F.2d at 866. See Id. at 868
(noting that “[t]he identity of the parties to the memorandum is important”).
Communications responsive to Plaintiffs’ discovery requests cannot, therefore,
be withheld on the grounds of the deliberative process privilege.
Plaintiffs request an
order compelling the Agency Defendants to produce all documents relating to
communications with outside parties. The Agency Defendants have thus far
succeeded in obstructing meaningful inquiry into the facts of this case. The
requested order will prevent further delay, while allowing Plaintiffs to more
effectively focus future discovery on those matters most likely to lead to
relevant evidence.
III. Conclusion.
Unfortunately, Defendants’ in this action
have behaved precisely as Plaintiff JW’s counsel predicted they would at the
August 2, 2002 hearing in this matter:
By Judicial Watch Counsel Larry Klayman:
Secondly, we would like a commitment from the
government that they’re not going to hang back to the end of 30 days and then
say, okay, we have this problem. You know we need another 30 or another 60
days. This is the way it usually happens in these kinds of cases. We’d like to
get an indication up front of what their problems are, if any, in the next ten
days as they make their objections, so the Court can address them, because the
public is wanting to know what went on.
Transcript of August 2, 2002
Hearing at 31-32. True to form, the Executive Defendants’ failed to file any
objections to Plaintiffs’ discovery requests, and waited until the day their
responses to these requests were due to file a frivolous motion for protective
order. Because the Executive Defendants failed to file objections, they have
waived those objections, and should be ordered to produce the requested
discovery to Plaintiffs’ immediately.
Additionally, Plaintiffs’ respectfully submit that, a show cause order
immediately issue requiring the Executive Defendants show why they should not
be held in contempt of this Court’s August 2, 2002 Order. Finally, Plaintiff JW respectfully requests
that the Agency Defendants be ordered to immediately produce to Plaintiffs all
requested documents, as they have waived any claimed privileges due to their
inadequate privilege logs -- which were intended to delay the adjudication of
this case. Finally, all Defendants and their counsel should be sanctioned,
pursuant to 28 U.S.C. § 1927, and the inherent powers of the Court, for their
vexatious litigation tactics, intended to multiply the pleadings to cause delay
and harm to Plaintiffs and the public.
Respectfully submitted,
_________________________
Larry Klayman, Esq.
DC Bar No. 334581
Paul J. Orfanedes, Esq.
DC Bar No. 429716
JUDICIAL WATCH, INC.
501 School Street, S.W.
Suite 725
Washington, DC 20024
(202) 646-5172
Attorneys for Plaintiff Judicial Watch
LOCAL RULE 7.1(m) CERTIFICATE OF COUNSEL
On
September 30, 2002, I contacted Thomas Millet, Esq., counsel for Defendants, by
telephone, to confer, and to inquire whether his clients would consent to the
relief requested herein. Mr. Millet stated that his clients oppose Plaintiff
JW’s request.
_____________________
Larry Klayman, Esq.
_____________________
Jason B. Aldrich, Esq.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
JUDICIAL WATCH, INC.,
Plaintiff, Civil Action No.
01-1530
(EGS)
v.
NATIONAL ENERGY POLICY
DEVELOPMENT GROUP, et al.,
Defendants.
__________________________________________
__________________________________________
SIERRA CLUB,
Plaintiff, Civil Action No.
02-0631
(EGS)
v.
VICE PRESIDENT RICHARD
CHENEY, in his official capacity, et al.,
Defendants.
__________________________________________
[PROPOSED] ORDER
Upon consideration of Plaintiff Judicial
Watch’s Motion To Compel and Motion For Order To Show Cause Why Defendants
Should Not Be Held In Contempt And For Sanctions, any opposition thereto, and
the entire record herein, it is hereby:
ORDERED that:
1. Defendants
National Energy Policy Development Group, Vice President Richard Cheney, Andrew
Lundquist, Joshua Bolton, and Larry Lindsey (“Executive Defendants”) shall
immediately produce all documents responsive to Plaintiffs’ August 2, 2002
discovery requests.
2. The
Executive Defendants shall appear before this Court at a hearing set for
_______ a.m./p.m. on __________________, 2002, and show cause why they should
not be held in contempt for violating this Court’s August 2, 2002 Order.
3. Defendants
Paul O’Neill, Gail Norton, Ann M. Veneman, Donald Evans, Norman Mineta, Spencer
Abraham, Colin Powell, Joseph M. Allbaugh, Christine Todd Whitman, and Patrick
H. Wood, III (the “Agency Defendants”) shall produce all documents requested in Plaintiffs’ First Request For Production of
Documents and Plaintiffs’ First Set of Interrogatories.
SO ORDERED: ___________________________
Hon. Emmet G. Sullivan
United States District Judge
Date:
Copies to:
Larry Klayman, Esq.
Paul J. Orfanedes, Esq.
JUDICIAL WATCH, INC.
501 School Street, SW
Suite 725
Washington, DC 20024
Thomas Millet, Esq.
David O. Buchholz, Esq.
Jennifer Paisner, Esq.
Daniel Bensing, Esq.
U.S. Department of Justice
Civil Division, Federal Programs Branch
P.O. Box 883
Washington, DC 20044
Roger Adelman, Esq.
Law Offices of Roger Adelman
1100 Connecticut Ave., NW
Suite 730
Washington, DC 20036
Howard M. Crystal, Esq.
Meyer & Glitzenstein
1601 Connecticut Ave., NW
Suite 700
Washington, DC 20009
David Bookbinder, Esq.
Sierra Club
408 C Street, NE
Washington, DC 20002
Patrick Gallagher, Esq.
Alex Levinson, Esq.
Sanjay Narayan, Esq.
Sierra Club
85 Second Street
San Francisco, CA 94104
CERTIFICATE OF SERVICE
I hereby certify that on September 30, 2001 a
true and correct copy of the foregoing PLAINTIFF JUDICIAL WATCH’S MOTION TO
COMPEL AND MOTION FOR ORDER TO SHOW CAUSE WHY DEFENDANTS SHOULD NOT BE HELD IN
CONTEMPT AND FOR SANCTIONS was served via ECF Notification and first class
mail, postage prepaid, on the following:
Thomas Millet, Esq.
David O. Buchholz, Esq.
Jennifer Paisner, Esq.
Daniel Bensing, Esq.
U.S. Department of Justice
Civil Division, Federal Programs Branch
P.O. Box 883
Washington, DC 20044
Roger Adelman, Esq.
Law Offices of Roger Adelman
1100 Connecticut Ave., NW
Suite 730
Washington, DC 20036
Howard M. Crystal, Esq.
Meyer & Glitzenstein
1601 Connecticut Ave., NW
Suite 700
Washington, DC 20009
David Bookbinder, Esq.
Sierra Club
408 C Street, NE
Washington, DC 20002
Patrick Gallagher, Esq.
Alex Levinson, Esq.
Sanjay Narayan, Esq.
Sierra Club
85 Second Street
San Francisco, CA 94104