June 24, 2004
While it is disappointing that the Supreme Court declined to take this opportunity to embrace the principle of openness in Cheney v. United States District Court, it is heartening that the Court did not side with the administration, and instead remanded the case to the lower court.
In short, we are pleased the Court made these choices:
It declined to address the argument raised by the Vice President that his office is categorically exempt from discovery. As Justice Ginsburg's dissent observed, the Vice President had argued before the district court that the injury is submitting to discovery in the absence of a compelling showing of need and, throughout the underlying litigation, underscored its resistance to any and all discovery. Although the majority did emphasize that the court of appeals should have weighed the burden of discovery on the executive branchs constitutional prerogatives, it declined to endorse the radical position of the Vice President that his office could claim a blanket freedom from disclosure.
Instead of exempting the Vice President from discovery altogether, it identified a number of factors—the nature of the case, the breadth of the discovery sought and the narrowness of the legal question to which the discovery would be relevant—that suggest a role for the district court in narrowing discovery from the Vice President. Although this choice effectively delays resolution of the matter, it also avoids the worst possible outcome—allowing the Vice President to continue operating in secret. Instead the court went out of its way to encourage the lower courts to consider the possibility of narrowing the scope of discovery.
Although we still look forward to a decision that allows the public to know what industry interests participated in important policy decisions, we are pleased that the Supreme Court declined to endorse the administration's preference for secrecy.
Signed by the following organizations, which signed onto the Amicus Brief:
Mary Alice Baish, American Association of Law Libraries
Patrice McDermott, American Library Association
John Podesta, Center for American Progress
Celia Wexler, Common Cause
Peter Hirtle, Institute for Digital Collections
Meredith Fuchs, National Security Archives
Gary D. Bass, OMB Watch
Rick Blum, OpenTheGovernment.org
Elliot Mincberg, People for the American Way
Tim Ericson, Society of American Archivists
Doug Newcomb, Special Libraries Association