Memorandum Establishing National Energy Policy Development Group," January 29, 2001, quoted in Judicial Watch z: NEPDG, 219 F.
The presidential memorandum establishing the NEPDG allowed it to act only through the end of the 2001 fiscal year.
Judicial Watch brought suit in July 2001 against the NEPDG and various individuals in the United States District Court for the District of Columbia.
Justice Clarence Thomas, joined by Justice Antonin Scalia, argued, nevertheless, in a separate opinion, that "application of the de facto member doctrine to authorize broad discovery into the inner-workings of the NEPDG has the same potential to offend the Constitution's separation of powers as the actual application of FACA to the NEPDG itself.
It was the majority's view that "The District Court ordered discovery here, not to remedy known statutory violations, but to ascertain whether FACA's disclosure requirements even apply to the NEPDG in the first place.
Litigating to keep NEPDG documents, which might link the White House with Enron executives, out of the public eye until after the 2004 presidential election prevented potential electoral problems.
Shortly thereafter, GAO informed the vice president's counsel that it was eliminating its request for minutes or notes of meetings of the NEPDG, as well as any information regarding the information presented at such meetings.
In its report, GAO formally stated that it was withdrawing its request for copies of minutes, notes, and information presented at the meetings "as a matter of comity" and was seeking documents regarding (1) the names of those present at NEPDG meetings; (2) the names of the NEPDG's professional support staff; (3) the names of those with whom NEPDG members and support staff met to gather information for the National Energy Policy, including the date, subject, and location of such meetings, and; (4) what direct and indirect costs were incurred in developing the National Energy Policy.
On January 30, 2002, Walker formally announced that GAO would file suit to enforce its asserted statutory right of access to the requested NEPDG records (Allen 2002b, A4).
Also, the court gave some weight to the fact that whereas its decision prevented the comptroller general from gaining access to the NEPDG documents, private parties were seeking similar information in other suits.
Likewise, it is important to note that GAO attempted to reach just such an accommodation in the case at hand by withdrawing its demand for copies of minutes, notes, and information presented at NEPDG meetings.
Whereas the vice president's counsel provided basic information regarding the NEPDG, the administration did not provide any public policy justifications for its refusal to supply more substantive information, and did not engage in the traditional negotiate and delay tactics that have characterized prior high-level disputes between GAO and the executive branch.