The United States District Court for the District of Columbia required the Vice President and other senior officials in the Executive Branch to produce information about a task force established to give advice and make policy recommendations to the President.
The President cannot, through the assertion of a broad and undifferentiated need for confidentiality and the invocation of an absolute, unqualified executive privilege, withhold information in the face of disclosure orders.
A few days after assuming office, President George W. Bush issued a memorandum establishing the National Energy Policy Development Group. The Group was directed to develop a national energy policy designed to help the private sector and government at all levels, promote dependable, affordable and environmentally sound production and distribution of energy for the future. The President authorized the Vice President, as the chairman of the Group, to invite other officers of the Federal Government to participate “as appropriate.” Five months later, the Group issued a final report and terminated all operations. Respondents sued, alleging that the Group had failed to comply with the procedural and disclosure requirements of the Federal Advisory Committee Act. The district court required the petitioners to produce all materials subject to the Act’s requirements.
Does the Federal Advisory Committee Act authorize the court’s review of executive branch deliberations through a discovery request?
The Supreme Court sent the case back to the Court of Appeals stating that the Court of Appeals must evaluate the separation of powers considerations. The Court noted that the Court of Appeals must distinguish between civil cases and criminal cases and impose a different standard for disclosure requirement. Also, the Court of Appeal’s reliance on Nixon was wrong because Nixon dealt with a criminal case whereas the case at issue deals with a civil case.
The Court of Appeal reliance on Nixon‘s rejection of an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances was incorrect. Unlike this case, which concerns respondents’ request for information for use in a civil suit, Nixon involves the proper balance between the Executive’s interest in the confidentiality of its communications and the constitutional need for production of relevant evidence in a criminal proceeding. The need for information in the criminal context is must weightier because our historical commitment to the rule of law is nowhere more profoundly manifest than in our view that the aim of criminal justice is that guilt shall not escape and innocence suffer. The need for information for use in civil cases, however, does not share the urgency or significance of criminal disclosure requests in Nixon. Withholding the information in this case does not hamper another branch’s ability to perform its essential functions in quite the same way. Thus, the judgment of the Court of Appeals is remanded.