Information Act

initiated this action under the Freedom of ("FOIA"), 5 U.S.C. §§ 552 et seq., seeking disclosure of documents that concern regulations under consideration by the Environmental Protection Agency ("EPA"), the Food and Drug Administration ("FDA"), and the Occupational Safety and Health Administration ("OSHA") and that were received and/or transmitted by the Presidential Task Force on Regulatory Relief ("Task Force"). Presently pending is defendants' motion to dismiss or, in the alternative, for summary judgment. For the following reasons, defendants' motion is denied.

I. BACKGROUND

A. The Presidential Task Force on Regulatory Relief

On January 22, 1981, shortly after taking office, thenPresident Ronald Reagan ("President Reagan" or the "President") announced his intention to establish the Presidential Task Force on Regulatory Relief to be chaired by then- Vice President George

Bush (the "Vice President" or "Chairman"). The mission of the Task Force was to "review pending regulations, study past regulations with an eye towards revising them and recommend appropriate legislative remedies," Noting that government regulations "impose an enormous burden on large and small businesses, discourage productivity and contribute substantially to our current economic woes," President Reagan created the Task Force to "cut away the thicket of irrational and senseless regulations" and "coordinate an inter-agency effort to end excessive regulation."2 On January 29, 1981, the President ordered a "freeze" on nearly all pending proposed and final regulations to afford the Task Force an opportunity to review them.3 The following day, the President appointed seven members to the Task Force: the Secretaries of Treasury, Labor, and Commerce; the Attorney General; the Director of the Office of Management and Budget ("OMB"); the Assistant to the President for Policy Planning; and the Chairman of the Council of Economic Advisors." The Task Force was to (1) review major proposals by executive branch regulatory agencies; (2) assess executive branch regulations already on the books; (3) oversee the development of legislative proposals in response to congressional

'White House Press Release, Remarks by the President; dated January 22, 1981; Plaintiff's Exhibit ("Pl. Ex.") A, at 37.

2pl. Ex. A, at 37.

'Memorandum from President Reagan to Cabinet Heads and the Administrator of EPA; dated January 29, 1981; Pl. Ex. A, at 39.

"Statement by Vice President Bush Regarding the Membership and the Charter of the Presidential Task Force on Regulatory Relief; dated January 30, 1981; Pl. Ex. A, at 41-43.

5

timetables; and (4) codify the President's views on the appropriate the role and objectives of regulatory agencies. On February 17, 1981, the President signed Executive Order 12291 ("E.O. 12291" or "Order"), which created a process for review within the executive branch of all new and existing regulations."

new

On August 11, 1983, the Task Force issued a report entitled "Reagan Administration Regulatory Achievements." According to the of report, the actions of the Task Force in "slow[ing] the growth of or eliminat[ing] hundreds revis[ing] federal rules, unjustifiable inherited rules," and "commenc[ing] the revision of and loca 1 a number of regulatory statutes" would result in savings to and state universities, businesses, governments of more than $150 billion dollars over a ten year period.

consumers,

December 15, 1986, on More than three years later, a memorandum to the heads of all President issued departments and agencies.

the

executive

By the terms of the memorandum, the

to be chaired by Vice

President reestablished the Task Force, President Bush, and directed the Task Force "to review existing Federal regulatory programs and to develop legislative or other proposals to further eliminate or reduce unnecessary regulatory and paperwork burdens upon the American public and improve American

'pl. Ex. A, at 42.

646 Fed. Reg. 13193-13198; Pl. Ex. A, at 45-50.

7pl. Ex. F.

pl. Ex. F, at 1.

productivity and competitiveness."?

B. Plaintiff's FOIA Request

By letter dated June 28, 1988, plaintiff submitted a FOIA request to the Task Force on Regulatory Relief, Office of the Vice President. 10 In that letter, plaintiff requested access to three categories of documents in the possession of "the Task Force on Regulatory Relief, Vice President George Bush, who chairs the Task Force, or any member of the Task Force."11 Specifically, plaintiff

sought:

(1) All reports, which have been issued since February, 1981, concerning the accomplishments of the Task Force;

(2)

(3)

All reports, which have been issued since February, 1981 which list or identify the regulations that the Task Force has reviewed; and

All reports, memoranda, correspondence, or other written documents transmitted to or from the Task Force or any of its members since January 1, 1985, concerning the Task

'Memorandum for the Heads of Executive Departments and Agencies; dated December 15, 1986; Defendants' Exhibit ("Def. Ex.") 3, at 1.

Plaintiff points out that it is unclear whether the Task Force was still in existence at the time this lawsuit was filed. ThenPresident-elect Bush suggested, on December 15, 1988, that thenVice President-elect Daniel Quayle might assume the position of Chairman of the Task Force, and the Task Force appointed an advisory committee on January 5, 1989, whose existence appears to extend into 1989.

10At the time she made her initial request, plaintiff was on leave from the Public Citizen Litigation Group, where she had worked as an attorney since 1979. She had taken the leave of absence, in part, to conduct a study of George Bush's role as Chairman of the Task Force, intending to use the results to contribute to the public debate surrounding the Presidential Campaigns of Bush and Michael Dukakis. Affidavit of Katherine A. Meyer ("Meyer Aff."), ¶¶ 2-3.

0.

"Letter from Katherine A. Meyer; dated June 29, 1988; Pl. Ex.

66-471 0 93-14

Force's review of or involvement in regulations that were or still are under consideration by the Environmental Protection Agency, the Food and Drug Administration, or the Occupational Safety and Health Administration.

By letter dated July 1, 1988 plaintiff was advised by John P. Schmitz ("Schmitz"), Deputy Counsel to the Vice President, that FOIA did not apply "to the Vice President or his immediate personal staff, whose sole function is to 'advise and assist' the Vice

President and the President.13 Plaintiff appealed this decision in a letter dated July 11, 1988 to Schmitz, explaining that she was not requesting records of the Vice President that were used in his capacity as an adviser to the President, but rather, she was seeking "documents that were received or generated by the Task Force which he chairs."14

The Legal office of the Vice President, which is also the legal office of the Task Force, responded to plaintiff's appeal by telephone in August, 1988. A woman, who identified herself as an attorney for the Vice President, assured plaintiff that all of the documents responsive to her request were physically located at the OMB and that she should pursue her request there with Jay Plager ("Plager"), Administrator of the office of Information and Regulatory Affairs ("OIRA") and Executive Director of the Task

13 Letter from John P. Schmitz to Katherine A. Meyer; dated July 1, 1988; Pl. Ex. P.

"Letter from Katherine A. Meyer to John P. Schmitz; dated July 11, 1988; Pl. Ex. Q, at 1.