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Appeals Court Says Energy Task Force Records Exempt from FOIA

A federal appeals court in Washington, DC, scuttled a watchdog group's efforts to obtain records and documents related to the secret deliberations of the national energy policy task force.

The U.S. Court of Appeals for the District of Columbia Circuit on Thursday ruled that the agencies, citing an exemption under the Freedom of Information Act (FOIA), lawfully withheld task force documents from DC-based Judicial Watch. The court further said that records created or obtained by agency employees detailed to the task force were not "agency records" subject to disclosure under the FOIA.

The task force, which was chaired by Vice President Dick Cheney, formulated the Bush administration's energy policy in 2001. Judicial Watch and other groups have been trying for years to gain the records. They contend that large Bush campaign contributors, such as former Enron executives, had a direct pipeline to the task force and unduly influenced the drafting of the energy policy.

The appeals court affirmed in part and reversed in part a 2004 ruling by the U.S. District Court in Washington. "We hold the defendant agencies may properly withhold from disclosure, pursuant to Exemption 5 [of FOIA], documents that would reveal the deliberative processes" of the task force, formally known as the National Energy Policy Development Group (NEPDG), "as those records are not 'agency records' within the meaning of the FOIA," the court said, in reversing the lower court.

"Because the circumstances amply support the [Department of Energy's] assertion that the detailees were as a practical matter employees of the NEPDG, and not of the agency, it follows that the records those employees created or obtained while on detail were those of the NEPDG, not those of the DOE, and hence not 'agency records' within the meaning of the FOIA."

However, "the district court correctly determined the [Department of Interior] must disclose the non-exempt documents of Ronald Montagna," an Interior employee who was assigned to the task force, the three-judge panel said. The appeals court remanded the case back to federal court.

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