The opinion of the court was delivered by: Gladys Kessler, U.S. District Judge.
In January of 2001, President Bush created the Energy Task Force,
appointed Vice-President Cheney to be its chair, and directed the Task
Force to provide him with advice and recommendations regarding the future
of United States energy policy. In addition to Vice-President Cheney, the
Task Force's membership included the Secretaries of the Departments of
Energy, Interior, Agriculture, Transportation, and Commerce, as well as
the Administrator of the Environmental Protection Agency and the Director
of the Office of Management and Budget.
During the next several months, the Task Force met with various
individuals and groups, and in May 2001 issued its Report entitled
"National Energy Policy: Report of the National Energy Policy Development
Group."*fn1 The Report contained numerous recommendations, some of which
are already being implemented.
On April 26, 2001, Plaintiff filed this FOIA request, seeking ten
categories of DOE documents relating to the Task Force. On May 11, 2001,
DOE made an initial release of 33 documents to Plaintiff*fn2 and granted
its fee waiver request. On July 2, 2001, NRDC filed a constructive denial
appeal with DOE's Office of Hearings and Appeals; on July 19, 2001, the
appeal was denied. The present lawsuit was filed December 11, 2001.
No other records have been released by DOE in response to Plaintiff's
FOIA request of April 26, 2001. DOE estimates that approximately 7500
pages are responsive to that request. DOE now requests that it be allowed
until March 15, 2002, to provide Plaintiff with an initial release of
approximately 500 pages of responsive documents, that it be allowed until
April 15, 2002, to provide Plaintiff with a second release of responsive
documents, and that it be allowed until May 15, 2002 — more than
one year after Plaintiff's initial request — to provide Plaintiff
with a final package of the balance of responsive documents as well as an
index describing documents or categories of documents that have been
withheld in whole or in part.
What is even more distressing is that Plaintiff was not the only
requester seeking this information. DOE concedes that it has at least 11
other similar FOIA requests seeking access to documents relating to the
work of the Energy Task Force, and it would appear that none of those
other requests have been responded to. While DOE cites the existence of
these other pending requests to justify its failure to process NRDC's
request, these other requests clearly involve overlapping and duplicative
materials. Thus, by processing Plaintiff's request in a far more
expeditious manner, as this Court will order, DOE will also be carrying
out its FOIA responsibilities to the other 11 requesters.
In addition to having no legal, or practical, justification for working
at a glacial pace on Plaintiff's FOIA request until suit was filed in
December, the material which Plaintiff seeks is of extraordinary public
interest. The subject of energy policy, especially since the terrible
events of September 11, 2001, is of enormous concern to consumers, to
environmentalists, to the Congress, and to industry. It is hardly any
secret that Congress will shortly be considering these complex policy
issues and, in an effort to fully prepare itself, has attempted to obtain
information, through the General Accounting Office, about the Task
Force's operations and the manner in which its recommendations were
developed. Plaintiff is particularly concerned about current
implementation of the Task Force's recommendations and their
environmental implications, about the secrecy in which the Task Force
operated, the participation of various non-governmental officials who were
consulted in developing the Task Force's recommendations, and whether
there was compliance with the Federal Advisory Committee Act, 5 U.S.C.
App. II, § 1 et seq.
The purpose of FOIA is to find out what our "government is up to".
United States Dep't of Justice v. Reporters Committee for Freedom of the
Press, 489 U.S. 749, 773 (1989) That is precisely the purpose of the
Plaintiff's FOIA request. The Government can offer no legal or practical
excuse for its excessive delay in responding to that request and
providing documents to which NRDC is legally entitled. Moreover, the time
table DOE proposes to meet may well result in disclosing the relevant
documents after the need for them in the formulation of national energy
policy has been overtaken by events. For all these reasons, it is
appropriate to grant Plaintiff's Motion.
Upon consideration of Plaintiff's Expedited Motion for Release of
Responsive Records and for a Vaughn Index, the Opposition and Reply
thereto, the status hearing held in this matter on February 8, 2002,
and the entire ...