Letter_WalkerJan30-2001.txt

Comptroller General
of the United States United States General Accounting Office
Washington, DC 20548

Decision of the Comptroller General Concerning NEPDG Litigation
January 30, 2002
As you know, the United States General Accounting Office (GAO)
has been engaged in an ongoing effort to obtain certain narrowly
defined, factual information concerning the development of the
National Energy Policy proposal from Vice President Cheney in his
role as Chair of the National Energy Policy Development Group
(NEPDG). Importantly, we are only seeking limited information in
connection with NEPDG-related matters.
The administration used the NEPDG as a mechanism to, among other
things, outreach to selected non-governmental parties and develop a
proposed comprehensive energy policy. In addition, contrary to
recent assertions, we are not seeking the minutes of these meetings
or related notes of the Vice President's staff. This was conveyed
to the White House in writing on August 17, 2001. Unfortunately,
despite our numerous attempts to reach a reasoned and reasonable
accommodation on this matter, to date, the information we requested
has not been made available to us.
In his August 2, 2001, letter to both Houses of Congress, the
Vice President raised a number of objections to providing the
information we requested. Importantly, for both the Congress and
GAO, the Vice President challenged GAO's fundamental statutory
authority to assist the Congress in connection with its
constitutional, legislative and oversight authorities. These
challenges went far beyond issues relating to his constitutional
position as Vice President and White House staff related matters.
As noted in our prior correspondence concerning this matter, the
information we are seeking is clearly within our statutory audit
and access authority. Accordingly, as provided in our statutory
access authority, on July 18, 2001, we issued a formal request for
the records. Unfortunately, the statutory 20-day response period
passed without any meaningful action by the Office of the Vice
President. In accordance with the prescribed statutory process, on
August 17, 2001, we reported to the Congress, the President, the
Vice President, and other officials that the NEPDG had not provided
the requested records. (See enclosed August 17, 2001, report.)
While the NEPDG did provide some cost-related documents to GAO,
most of these documents were not useful or self-explanatory.
Moreover, even though the Vice President and his counsel
acknowledge our authority to access cost information, they have not
provided us the remaining cost information and explanations
requested. Apart from information concerning the Vice President's
meetings, they also have not provided us with factual information
concerning who the NEPDG staff, including non-White House staff who
were assigned to the NEPDG from various government departments and
agencies, met with and the purpose of those meetings.
We strongly disagree with the Vice President's objections to our
audit and access authority. Significantly, under GAO's statutory
access authority, Congress provided the President and the Director
of the Office of Management and Budget a safety valve to preclude
judicial enforcement of GAO's access rights. The executive branch
has chosen not to use this mechanism. Furthermore, the President
has not claimed executive privilege in connection with our request.
As previously noted, all of our attempts to reach a reasoned and
reasonable accommodation, including reducing the scope of our
request, have been rebuffed, and we have now exhausted the
statutory process for resolving our access requests. As a result,
our only remaining recourse is either to file suit in the United
States District Court for the District of Columbia or to forego
further assertion of our access rights.
GAO was preparing to go to court in September of this past year
until the tragic events of September 11. As I stated last
September, prudence dictated that we delay any related legal action
given the immediate need for the administration and the Congress to
focus on developing our Nation's initial response to our fight
against international terrorism and efforts to protect our
homeland.
The Congress has a right to the information we are seeking in
connection with its consideration of comprehensive energy
legislation and its ongoing oversight activities. Energy policy is
an important economic and environmental matter with significant
domestic and international implications. It affects the lives of
each and every American. How it is formulated has understandably
been a longstanding interest of the Congress. In addition, the
recent bankruptcy of Enron has served to increase congressional
interest in energy policy, in general, and NEPDG activities, in
particular. This, plus the Senate's expected consideration of
comprehensive energy legislation this session, reinforces the need
for the information we requested concerning the development of the
National Energy Policy proposal. In this regard, we recently
received a request for the NEPDG information we are seeking from
four Senate committee and subcommittee chairmen with jurisdiction
over the matters involved. Importantly, our governing statute
requires GAO to perform such committee requests.
Clearly, the formulation and oversight of energy policy and the
investigation of Enron-related activities represent important
institutional prerogatives of the Congress. Furthermore, a number
of other important principles are involved. Failure to provide the
information we are seeking serves to undercut the important
principles of transparency and accountability in government. These
principles are important elements of a democracy. They represent
basic principles of "good government" that transcend
administrations, partisan politics, and the issues of the moment.
As such, they should be vigorously defended. Otherwise, it could
erode public confidence in and respect for the institutions of
government.
The disclosure of the activities of the NEPDG is also important
for precedential reasons. Specifically, the NEPDG was financed with
appropriated funds and staffed largely by government department and
agency personnel assigned to it. We disagree with the White House
position that the formation of energy policy by the NEPDG is
Page 2 beyond congressional oversight and GAO review. Were the
Vice President's arguments in this case to prevail, any
administration seeking to insulate its activities from oversight
and public scrutiny could do so simply by assigning those
activities to the Vice President or a body under the White House's
direct control.
In our view, failure to pursue this matter could lead to a
pattern of records access denials that would significantly undercut
GAO's ability to assist Congress in exercising its legislative and
oversight authorities. We would have strongly preferred to avoid
litigation in connection with this matter, but given the request by
the four Senate committee and subcommittee chairmen, our rights to
this information and the important principles and precedents
involved, GAO will take the steps necessary to file suit in United
States District Court in order to obtain, from the Chair of the
NEPDG, the information outlined in our August 17, 2001, report.
This will be the first time that GAO has filed suit to enforce our
access rights against a federal official. We hope it is the last
time that we will have to do so.
We have great confidence in our nation's legal system and look
for a timely resolution of this important matter. If you have any
questions, comments or concerns, please do not hesitate to contact
me.
Sincerely yours,
[signed]
David M. Walker Comptroller General of the United States
cc: President of the United States Vice President of the United
States
Enclosure
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