Energy Department Midnight Reg Seeks To Bind Obama To Keep Old Secrets

December 17, 2008

The Energy Department has proposed an 11th-hour rule change that would set in concrete the Bush administration secrecy rules that shroud the policies that brought Americans Enron, California blackouts, and $4 gasoline.

The proposed rule was published in the Federal Register December 9, 2008. The deadline for comments is January 8, 2009. The Bush administration could finalize it before leaving office.

In effect, it would codify and institutionalize the presumption of secrecy which the Bush administration instructed federal agencies to follow in responding to Freedom of Information Act requests. The purpose of FOIA was the opposite: legally establishing a presumption of openness regarding government records. But the so-called "Ashcroft Memo" issued October 12, 2001, sternly encouraged agencies to deny information to requesters whenever they had discretion to do so — and promised that DOJ would defend them in court.

The rule proposed Dec. 9 would apply only to the Energy Department. It changes the regulations under which DOE implements FOIA by eliminating what it calls an "extra balancing test" which states "To the extent permitted by other laws, the DOE will make records available which it is authorized to withhold under [FOIA] whenever it determines that such disclosure is in the public interest." It would also hike the charge for paper copies of records from the current 5 cents per page to 20 cents per page.

DOE justifies its proposed change by alleging that the balancing test "imposes an additional burden" on the agency — although the proposal offers no evidence to support this.

DOE also claims that the balancing test "does not alter the outcome of the decision to withhold information" — noting that it follows the Ashcroft directive to withhold information in any case. But the Ashcroft directive can be reversed in a heartbeat by the incoming Obama administration. If finalized, the proposed rule change could likely prevent such a reversal of Justice Department guidance from applying to DOE.

The DOE proposal also argues that the balancing test "goes beyond the requirements of the FOIA." That contradicts the legal opinion of President Clinton's Attorney General, Janet Reno, in an Oct. 4, 1993 memo to agencies.

Veteran observers could only speculate on why the midnight regulation applied solely to DOE, since DOE offered no explanation on why it was different from other agencies. DOE's nuclear secrets are kept secret under the classified information system — beyond the reach of FOIA — so that could hardly be a motive.

But those same observers noted that the opening up of long-closed DOE records under Clinton-era Energy Secretary Hazel O'Leary (this was done by declassification, not FOIA) led to embarrassing revelations about Cold War human radiation experiments and compensation of some of their victims and subjects.

During the George W. Bush presidency, there was exceptional secrecy regarding the development of energy policies under the "Cheney Energy Task Force" — and challenges to this secrecy ultimately went to the Supreme Court. Public-interest advocates accused Bush and Cheney of letting oil, coal, and utility companies write themselves a blank check, policywise, in return for bountiful campaign contributions. The truth was never more than partially revealed, because of Cheney's determination to keep secret the Task Force's meetings with oil, coal, and utility executives and lobbyists.

The director of the Cheney task force was an Energy Dept. employee named Andrew Lundquist (later a partner of Steven Griles). When the Natural Resources Defense Council filed a FOIA request in 2001 to DOE for Cheney Task Force records, DOE denied it on grounds that Lundquist had been assigned to the White House (release). The newly proposed DOE FOIA rule change could help keep those records secret for a while longer.

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