GOVERNMENT IN THE SUNSHINE ACT

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP77M00144R000800030004-0
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 39
• Document Creation Date: December 9, 2016
• Document Release Date: September 2, 2001
• Sequence Number: 4
• Publication Date: March 8, 1976
• Content Type: OPEN

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94TH CONGRESS HOUSE OF REPRESENTATIVES
2d Session
Mr. BROOKS, from the Committee on Government Operations,
submitted the following
REPORT
together with
ADDITIONAL VIEWS
[To accompany H.R. 116561
The Committee on Government Operations, to whom was referred
the bill (H.R. 11656) to provide that meetings of Government agen-
cies shall be open to the public, and for other purposes, having con-
sidered the same, report favorably thereon with amendments and
recommend that the bill as amended do pass.
The two committee amendments, each of which is of a technical and
conforming nature, are :
Page 7, line 3, before "closed" insert "to be".
Page 16, line 12, after "party" insert "or interested person".
The first amendment changes from the present to the future tense a
reference to a meeting that has not yet been held.
The second amendment conforms one subparagraph of the ex parte
communications provisions of the bill to the remainder of those
provisions. The prohibition on such communications to an agency
decisionmaking official applies to anyone who is an "interested per-
son". Subparagraph (D) of the proposed section 557(d) (1) of title 5,
United States Code, refers in its original form only to a "party", and
the amendment adds "interested person" so as to make this subpara-
graph conform to the rest of section 4.
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PURPOSE
The purpose of H.R. 11656 is to provide that meetings of multi-
member Federal agencies shall be open to the public, with the excep-
tion of discussions of several narrowly defined areas. The bill also
prohibits ex parte communications to and from agency decisionmak-
ing officials with respect to the merits of pending proceedings.
The basic premise of the Sunshine legislation is that, in the words
of Federalist No. 49, "the people are the only legitimate fountain of
power, and it is from them that the constitutional charter . . . is
derived." Government is and should be the servant of the people,
and it should be fully accountable to them for the actions which it
supposedly takes on their behalf.
In a, theoretical sense, the agencies in the executive branch are al-
ready accountable to the people through the President, who is in-
directly elected, and the Congress, whose members are directly elected.
This theoretical accountability, though, leaves agency commissioners
far removed from the public view in their day-to-day activities.
Absent special circumstances, there is no reason why the public
should not have the right to observe the agency decisionmaking proc-
ess first-hand. In the words of FCC Commissioner Glen 0. Robinson,
who testified before the Government Information and Individual
Rights Subcommittee on this legislation :
Chief among the benefits lof the legislation] is increasing
public understanding of administrative decisionmaking proc-
esses. * * * I do not know whether that understanding will
lead to greater confidence in administrative decisionmaking.
* * * Quite possibly, it could lead to less confidence. But
either of these outcomes * * * can be beneficial: if, in the
light of sunshine a Government agency shows itself to be
deserving of trust, then by all means it should have it; con-
versely, if that same sunlight reveals and agency to be inept,
inefficient, and not in pursuit of the public interest, then ob-
viously that agency does not deserve, and should not have,
public trust. (Hearings on H.R. 10315 and H.R. 9868, p. 98.)
The legislation requires that when an agency closes a meeting under
one of the exemptions in the bill, it must make a recording or ver-
batim transcript of the closed portion and release to the public any
part of the recording or transcript. that does not contain exempt in-
formation. A second purpose of this requirement is to assure that a
citizen has a meaningful remedy when a meeting has been illegally
closed, namely, the release by the court of the transcript of the il-
legally closed portion.
The purpose of the provisions of the bill prohibiting ex parte com-
munications is to insure that agency decisions required to be made on
a public record are not influenced by private, off-the-record communi-
cations from those personally interested in the outcome.
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SUMMARY OF MAJOR PROVISIONS OF TUE LEGISLATION
OPEN MEETINGS
The open meeting provisions would apply to the approximately 50
Federal agencies that (1) are presently covered by the Freedom of
Information Act and the Privacy Act, and (2) are headed by a body
of two or more members, a majority of whom are chosen by the Presi-
dent with the advice and consent of the Senate. The measure is also
expressly made applicable to the Federal Election Commission and
the Post Service. Meetings covered under the bill include not only
sessions at which formal action is taken, but also those at which
a quorum of members deliberates regarding the conduct or disposition
of agency business. A chance encounter or social gathering would not
be a meeting within the meaning of the bill so long as no agency busi-
ness is conducted or disposed of.
The bill requires that every part of every meeting be open to the
public unless it falls within one of the bill's 10 specific exemptions.
In case of doubt as to whether a portion of a meeting is exempt, the
presumption is to be in favor of openness. Even if a matter falls
within an exemption, the discussion must be open where the public
interest so requires.
No meeting or portion thereof may be closed unless a majority of
the entire membership votes to take such action. Such a vote need not
itself occur during a meeting and could properly be taken by cir-
culating a written ballot or tally sheet. If such a vote is taken during
a meeting, the discussion and vote must of course be open to the pub-
lic unless within one of the exemptions.
A copy of each vote on closing a meeting must be made available
to the public whether or not the meeting or portion is closed. This will
inform the public as to the full voting record of each agency member
on openness questions. When a vote on the issue of closing fulfills
the requirements for closing, a full written explanation of the action
and a list of all persons expected to attend the meeting must also
be made public.
Agencies are required to public announce, at least one week prior
to a meeting, its date, location, and other relevant information.
The keeping of a complete, verbatim transcript or electronic record-
ing of each portion of a meeting closed to the public would be required
(except for discussions dealing with adjudications or agency partici-
pation in civil actions), and any portion of each transcript or record-
ing whose release would not have the effect set forth in one or more
of the exemptions would have, to be made available to the public. In-
formation may be deleted only if it falls within an exemption and
disclosure is not required by the public interest, and deletions would be
replaced by a written explanation of the reason and the statutory
authority for each. Written minutes of open meetings will also be
required to be kept and made publicly available.
Any person could challenge in court the closing of a meeting or any
other violation of the openness requirements of the bill, and the burden
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of sustaining the closing or other action in question would be upon
the agency. The court could grant any appropriation relief, includ-
ing but not limited to enjoining future violations of the act or releas-
ing the transcript of an improperly closed meeting.
Fix PARTE COMMUNICATIONS
Section 4 of the bill would enact a general prohibition on ex parte
communications between agency decisionmaking personnel, including
commissioners and administrative law judges, and outside persons
having an interest in the outcome of a pending proceeding. These
provisions would apply to executive agencies without regard to
whether they are headed by a collegial body or a single individual.
The communications prohibited by the ex parte section would in-
clude only those relative to the merits of the proceeding. Thus, an
inquiry of an agency clerk as to the procedural status of an adjudi-
cation or rulemaking matter would not be unlawful under the bill.
A violation of the prohibition could result in sanctions up to and
including loss of the proceeding on the merits (as under existing case
law). See, e.g., Jacksonville Broadcasting Corp. v. FCC, 348 F.2d 75
(D.C. Cir.), cert. denied, 382 U.S. 893 (1965).
HISTORY OF TIIE LEGISLATION
This legislation represents a further, logical step in the continuing
process of opening governmental decisionmaking-to the public at the
Federal and State levels.
The Freedom of Information Act, making documents of executive
departments and agencies generally available to the public, was en-
acted in 1966 (Public Law 89-487, 80 Stat. 250) and codified as section
552 of title 5, United States Code, the following year (Public Law
90-23, 81 Stat. 54).
In 1972, Congress enacted the Federal Advisory Committee Act
(Public Law 92-463, 86 Stat.. 770, 5 U.S.C. App. I), designed to open
to the public the meetings of advisory committees, study panels and
ad hoc committees in the executive branch.
In 1974, after eight years of experience under the Freedom of
Information Act and several series of oversight hearings and studies,
Congress enacted strengthening amendments to that statute (Public
Law 93-502, 88 Stat. 1561).
In March 1973, the House adopted H. Res. 259, generally requiring
meetings of House committees (including markup sessions) to be open
to the public. On November 5, 1975, the Senate adopted S. Res. 9,
opening to public observation markups and other sessions of Senate
committees. The adoption of S. Res. 9 also completed the necessary
action to open meetings of conference committees (the House action
in this regard had been taken earlier in 1975 by H. Res. 5, but the
effectiveness of the House provision had been stayed pending the
adoption of a similar rule by the Senate).
The present legislation relates only to open meetings of agencies
in the executive branch. It made its first congressional appearance in
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1972 (H.R. 16450, 92d Cong., 2d Sess.) and was reintroduced in the
93d Congress with a total of almost 50 co-sponsors. In the present
Congress, various versions of the legislation in the House have a total
of 85 co-sponsors.
The Senate Government Operations Subcommittee on Executive
Reorganization held hearings on S. 260, a counterpart to H.R. 11656,
in 1974, and passed S. 5, a similar measure, on November 6, 1975, by
a vote of 94-0.
HEARINGS
The Government Information and Individual Rights Subcommittee
held hearings on TER. 10315 and H.R. 9868, earlier versions of this
legislation, on November 6 and 12, 1975. Witnesses included repre-
sentatives of executive agencies, the press, the bar, and the public.
CoMMirTm VOTE
At a meeting of the full Committee on Government Operations on
March 2, 1976, a quorum being present, H.R. 11656, as amended, was
approved and ordered reported by a vote of 32 ayes to 7 nays.
STATEMENT PURSUANT TO CLAUSE 7(a) OF RULE XIII
The committee estimates that the ex parte provisions of the legis-
lation will result in no additional costs.
The committee anticipates that most of the costs incurred in con-
nection with the open meeting provisions will be for the clerical and
administrative work they require. The committee estimates that such
costs will be minimal.
Under the bill, most agency meetings will be open to the public and
will therefore not require transcripts or electronic recordings. In most
instances, minutes are already taken at such meetings, so the only
additional expense will be that of duplicating one or more sets of the
minutes to be made available to the public. (Ordinarily, a member of
the public desiring his own set of the minutes will bear the expense of
copying.) The only other cost of an open meeting under this legislation
is that of the public announcement; this too, should be negligible.
An agency closing a portion of a meeting will have to make a
transcript or electronic recording thereof. Thus, the more frequently
an agency closes meetings, the greater will be the cost. Considering the
approximately 50 covered agencies as a whole, the committee estimates
that relatively few portions of meetings will be closed and that the
costs associated with closings will therefore be minimal. This cost will
be further reduced if an electronic recording device, rather than
stenographic notation, is used. The cost of electronic recording equip-
ment estimated at a few thousand dollars per covered agency. The cost
of transcription will be borne in large measure by members of the
public requesting copies of transcripts.
The committee's estimate comports with that provided by the
Comptroller General.
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STATEMENT PURSUANT To CLAUSE 2 (1) OF RULE XI
(A) No oversight findings or recommendations have been made
with regard to this measure.
(B) This measure does not provide for additional budget authority.
(C) The estimate and comparison prepared by the Director of the
Congressional Budget Office under section 403 of the Congressional
Budget Act of 1974 follow. Unless otherwise stated, all figures repre-
sent cumulative totals for the approximately 50 agencies covered by
the open meeting provisions of the bill :
COST ESTIMATE
Any projections of the costs of the "Sunshine Act" has to be
tentative since the number of recording devices it will be nec-
essary to buy and the amount of clerical time involved is
difficult to estimate. With this limitation, the costs of making
the proceedings of closed meetings available to the public
could be $30,000 for new recording equipment and $130,000
annually for additional clerical help. Assuming a starting
date of July 1, 1977, the budget impact would be :
Transition quarter---------------------------------------
162,500
Fiscal year 1977-----------------------------------------
130,000
Fiscal year 1978-----------------------------------------
2138,000
Fiscal year 1979-----------------------------------------
145,000
Fiscal year 1980---------------------------------- ------
152,000
Fiscal year 1981-----------------------------------------
160,000
=for recording devices, 25 percent of $130,000 in personnel costs.
2 Salaries are tied to the changes in the CPI at a 5-percent real growth rate in GNP.
The cost of a conference recording device should be about
$400. This analysis has assumed that half of the fifty or so
agencies in question will purchase one new recording machine,
and that the other half will require two.
As for hiring additional clerical help, the assumption here
is that one-quarter of the fifty agencies will do so at an aver-
age salary of $10,000 annually. Tf Congressional expectations
that there will be few closed meetings are realized, this esti-
mate on personnel could be on the high side of the spectrum.
ESTIMATE COMPARISON
Senate Report 94-354 estimates that the cost per agency
will be a few thousand dollars. The CBO cost projections are
also in that range.
STATEMENT PURSUANT TO CLAUSE 2(1) (4) OF RULE XI
The enactment of this bill into law is not expected to have any
inflationary impact on prices or costs in the operation of the national
economy.
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SECTION-BY-SECTION ANALYSIS
Section 1 provides that this act may be cited as the "Government
in the Sunshine Act."
Section 2 declares that it is the policy of the United States that
the public is entitled to the fullest practicable information regarding
the decisionmaking processes of the Federal Government, and that it
is the purpose. of this act to provide the public with such information
to the. maximum extent possible without infringing the. rights of in-
dividuals or significantly interfering with the ability of the Govern-
ment to carry out its substantive responsibilities.
Section 3 adds a new section 552b, entitled "Open meetings", to
title 5 of the United States Code.
Subsection (a)
Subsection (a) defines certain terms employed in section 552b. Since
section 552b- will be part of chapter 5 of title 5, United States Code,
the definitions contained in existing section 551 also apply to it unless
inconsistent with the definitions in subsection (a).
The term "agency" includes (1) any Federal agency, as defined
under the Freedom of Information Act (5 U.S.G. ? 552(e) ), which is
headed by a collegial body composed of two or more members, a ma-
jority of whom are appointed by the President with the advice and
consent of the Senate, (2) any subdivision thereof authorized to act
on behalf of the agency (without regard to the number of members
composing or included in the subdivision), and (3) the Federal Elec-
tion Commission. Though a single agge~nc head his de ut ais
assistants ma"head" agency in the co.?oquialI senseWey do not
have -common-duties and thus are not a coll`e ial bociy, -an-their agency
wouT -n"cme` tlliniis"deion. n t e offer` hand, while the
chair of a commission that Beads an agency may have certain responsi-
bilities over and above those of his or her fellow commissioners, his
or her position as Primus inter pares would not remove the agency
from the coverage of section 552b.
A subdivision of an agency covered under section 552b is covered
if it is authorized to act on behalf of the agency. Panels, or regional
boards of an agency are covered if authorized to act on behalf of the
agency, even if their action is not final in nature. Thus, panels or
boards authorized to submit recommendations, preliminary decisions,
or the like to the full commission, or to conduct hearings on behalf
of the agency are required to comply with the provisions of section
552b.
While the definition of agency does not include advisory committees
generally, it does include other bodies composed of part-time Govern-
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inent employees which meet from time to time to review agency activi-
ties and give guidance to staff, approve staff actions, review and ap-
prove the agency's proposed budget, and so forth. Such a board or
group would come within the definition of an agency even though
day-to-day supervision might be provided by a single administrator.
A specific provision as to the applicability of the Federal Advisory
Committee Act, 5 U.S.C. App. I, is contained in subsection (o) of
section 552b.
The use of a generic definition for the agencies covered by the bill
parallels the Administrative Procedure Act, 5 U.S.C. ? 551(1), the
Freedom of Information Act, 5 U.S.C. ? 552, and the Privacy Act of
1974, 5 U.S.C. ? 552a.
The term "meeting" means the deliberations of at least the number
of agency members required to take action on behalf of the agency,
where such deliberations concern the joint conduct or disposition of
agency business. The word "deliberations" includes not only a gather-
the requisite number of members in a single physical place, but
in
also, for example, a conference telephone call or a series of two-party
calls involving the requisite number of members and conducting
agency business. The conduct of agency business is intended to include
not just the formal decisionmaking or voting, but all discussion re-
lating to the business of the agency. The limitation of the definition
to "joint" conduct is intended to exclude a situation where the requisite
number of members is physically present in one place but not con-
ducting agency business as a body (as, e.g., at a meeting at which one
member is giving a speech while a number of his fellow members are
scattered throughout the audience). It does not exclude the situation
where a subdivision authorized to act on behalf of the agency meets
with other individuals concerning the conduct or disposition of agency
business.
MEMBER
The term "member" means an individual who belongs to a collegial
body heading an agency. Such an individual is a member for the pur-
poses of section 552b even if not appointed by the President and con-
firmed by the Senate, so long as a majority of the members of the body
are so appointed and confirmed.
Subsection (b)
Subsection (b) sets forth the basic principle of section 552b, namely.
that unless specifically exempted by subsection (c), every portion of
every meeting must be open to public observation. The presumption
in every instance is that a meeting shall be open to the public, and
this presumption may be overcome only by a preponderant showing
that the portion proposed to be closed clearly comes within one of the
exemptions contained in subsection (c).
The phrase "open to public observation," while not affording the
public any additional right to participate in a meeting, is intended to
guarantee that ample space, sufficient visibility, and adequate acoustics
will be provided.
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Subsection (c)
Subsection (c) sets forth the circumstances under which a meeting
or portion thereof may be closed to the public, and under which speci-
fied information developed in such a meeting or portion need not be
disclosed to the public. The subsection contains 10 exemptions to the
general rule of openness set forth in subsection (b), but provides that
even if a meeting or information falls within one of them, it shall not
be closed (or, in the case of information, withheld), if the public in-
terest requires otherwise. This balancing procedure is to be performed
by the agency in the first instance.
The provision permits closing where the agency properly deter-
mines that the discussion is likely to come within one or more of the
exemptions. It lets the agency withhold information contained in a
transcript or recording where the disclosure of the information would
in fact have the effect set forth in one or more exemptions. The burden
of sustaining a closing or withholding is at all times upon the agency.
The specific exemptions are :
(1) Exemption 1 covers matters that are specifically authorized
under criteria established under an Executive order to be kept secret
in the interests of national defense or foreign policy and are in fact
properly classified pursuant to such Executive order. No matters may
be withheld under this exemption unless they meet both requirements.
In order for material to be "properly classified", it must have been
originally classified pursuant to the applicable Executive order, re-
main entitled to such classification, and currently be protected from
loss or compromise pursuant to the provisions of the Executive order.
Under subsection (h) of section 552b, a court considering whether
this or any other exemption has been properly invoked may examine
the transcript or electronic recording of the meeting in camera, and
may take any other evidence it deems necessary.
(2) This exemption includes meetings relating solely to an agency's
internal personnel rules and practices. It is intended to protect the
privacy of staff members and to cover the handling of strictly internal
matters. It does not include discussions or information dealing with
agency policies governing employees' dealings with the public, such
as manuals or directives setting forth job functions or procedures.
As is the case with all of the exemptions, a closing or withholding
permitted by this paragraph should not be made if the public interest
requires otherwise.
(3) This paragraph permits closing or withholding where a statute
other than section 552b requires the withholding of the information in
question and establishes particular criteria defining such information
or refers to particular types of information. A statute that merely
permits withholding, rather than affirmatively requiring it, would not
come within this paragraph, nor would a statute that fails to define
with particularity the type of information it requires to be withheld.
Thus, for example, section 1104 of the Federal Aviation Act of 1958,
(49 U.S.C. ? 1504), which allows the Federal Aviation Administration
to withhold from the public any FAA material when he believes that
"a disclosure of such information * * * is not required in the interest
of the public," would not qualify under this exemption. See Adm,inis-
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trator, FAA v. Robertson, 422 U.S. 255 (1972). Similarly, the Freedom
of Information Act (5 U.S.C. 552), which permits but does not require
the withholding of information would not come within this exemp-
tion; and the Trade Secrets Act (18 U.S.C. ? 1905), which relates
only to the disclosure of information "not authorized by law," would
not permit the withholding of information whose disclosure is required
under the Freedom of Information Act or under this act, since FOIA
and this act authorize its disclosure. (In connection with section 1905,
see Charles River Park "A", Inc. v. Dept. of Housing and Urban De-
velopment, 519 F. 2d 935, 941 n. 7 (D.C. Cir. 1975), and cases there
cited.)
Examples of statutes that could justify a closing or withholding
under paragraph 3 include sections 706(b) and 709(e) of the Civil
Rights Act of 1964, as amended (42 U.S.C. ?2000e-5(b), 2000e-8 (e) ),
and section 314 (a) (3) of the Federal Election Campaign (2 U.S.C.
? 437g(a) (3) ), which require the Equal Employment Opportunity
Commission and the Federal Election Commission, respectively, to
withhold certain information relating to informal conciliation and en-
forcement efforts, and section 801 of the Federal Aviation Act of 1958
(49 U.S.C. ? 1461), which prohibits the Civil Aeronautics Board from
publishing certain information relating to a foreign air route appli-
cation prior to its submission to the President for his decision on the
route award.
(4) This exemption, which is identical to the trade secrets exemp-
tion of the Freedom of Information Act, 5 U.S.C. ? 552 (b) (4), protects
trade secrets and commercial or financial information obtained from a
person and privileged or confidential. A "trade secret" has been de-
fined judicially as:
An unpatented, secret, commercially valuable plan, appliance,
formula, or process, which is used for the making, preparing,
compounding, treating, or processing of articles or materials
which are trade commodities. United States ex rel. Norwegian
Nitrogen Products Co. v. United States Tariff Comm., 6 F. 2d
491, 495 (D.C. Cir. 1925), rev'd on other grounds, 274 U.S. 106
(1927).
This exemption also includes matter subject to certain evidentiary
privileges (doctor-patient, attorney-client) and confidential commer-
cial or financial information. The adoption of language following that
in the Freedom of Information Act is with recognition of judicial
interpretations of the FOIA exemption.
(5) Exemption (5) covers discussions that involve accusing any
person of a crime or formally censuring any person. In order to be cov-
ered by this paragraph, the discussion must relate to a specified person
or persons and, if possible criminal violation is at issue, a specific crime
or crimes. Further, the agency must. be considering a possible action of
a formal nature against the person in question.
Although the statute contains a general presumption in favor of
open meetings, this exemption balances that presumption against the
individual's right of privacy. Unless the public interest requires other-
wise, this exemption permits an agency to close a discussion that deals
with and precedes a decision whether to take formal action against an
individual.
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(6) This paragraph permits the closing of a meeting where the dis-
cussion would reveal personal information whose disclosure would con-
stitute a clearly unwarranted invasion of personal privacy. Like ex-
emption (5), this paragraph balances the need for openness against the
individual's right to privacy. It would, for example, allow the closing
of a discussion of an individual's health or alleged drinking habits.
In addition to the applicability of the general rule that allows such
a discussion to be open if that is in the public interest, the committee
notes that there may be circumstances where the official status of the
individual in question affects whether this exemption should be in-
voked (e.g., a discussion of an individual's competence to perform his
job might be open if he is a high government official, but closed if he is
of a lower rank or a private citizen). Compare New York Times Co. v.
Sullivan, 376 U.S. 254 (1964), with. Gertz v. Robert Welch, Inc., 418
U.S. 323 (1974).
Since the primary purpose of this exemption and of exemption (5)
is to protect the privacy of the person in question, the exemptions
should not ordinarily be utilized to close a meeting that the subject
would prefer to have open.
(7) This paragraph applies to meetings which disclose information
from investigatory records compiled for civil or criminal law enforce-
ment purposes. A meeting could be closed, however, only to the extent
that disclosure of records would interfere with enforcement proceed-
ings; deprive a person of a right to a fair trial or an impartial adjudi-
cation ; constitute an unwarranted invasion of personal privacy ;
disclose the identity of a confidential source; disclose confidential in-
formation furnished only by a confidential source in the course of a
criminal or national security intelligence investigation ; disclose in-
vestigative techniques and procedures; or endanger the life or phys-
ical safety of law enforcement personnel. This exemption recognizes
that premature public disclosure of certain matters concerning an
investigation could jeopardize these investigations and hinder the
ability of the agencies to fulfill their statutory duties.
To justify closing under this exemption, the records in question
must relate to a specific person or persons. The fact, that the identity of
a confidential source may be withheld does not justify the withholding
of information secured from such a source which does not in and of
itself reveal the identity of the source. Another governmental agency
may not be a "confidential." source, as the intent of subparagraph (D)
is to protect citizen informants and like sources.
An investigation may not be it "lawful" national security investiga-
tion unless it is carried on within the Constitution and applicable laws.
Thus, a discussion involving the records of unlawful activities in such
programs as CHAOS, COINTELPRO, and illegal CIA and FBI mail
opening does not involve a lawful national security investigation.
The provision relating to investigative techniques and procedures
does not include matters already known to the public. Thus, although
a meeting might be closed if it concerns a new technique for crime
detection only to the extent that the discussion is likely to brim out
aspects of it not already made public through judicial proceedings,
news stories, and the like.
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The provision relating to an invasion of personal privacy is limited
to the privacy of an individual. See Attorney General's Memorandum
on the 1974 Amendments to the Freedom of Information Act 9 (1975).
(8) This exemption applies to meetings which would, if open, dis-
close information contained in or relating to examination, operating,
or condition reports on financial institutions. Such reports are pre-
pared by or for such bank regulatory agencies as the Federal Deposit
Insurance Corporation, the Federal Home Loan Bank Board, and the
Federal Reserve Board. This provision is identical to exemption (8)
of the Freedom of Information Act.
(9) This exemption protects information whose premature dis-
closure would have certain adverse affects. Subparagraph (A), which
applies solely to agencies that regulate securities, currencies, commodi-
ties or financial institutions, includes information whose disclosure
would be likely tolead to significant financial speculation or to signifi-
cantly endanger the stability of any financial institution. This sub-
paragraph would cover many of the regulatory activities of such agen-
cies as the Federal Reserve Board and the Securities and Exchange
Commission.
Subparagraph (9) (B) applies to all agencies and protects informa-
tion whose premature disclosure would be likely to significantly frus-
trate an agency action that has not yet taken place. This provision does
not apply to such information, though, if the content or nature of the
proposed action has already been disclosed to the public by the agency
or the agency is required by law to disclose it to the public before final
approval of the action. In the case of rule making, for example, where
an agency has or will be required to publish the proposed rule for
notice and comment prior to placing it in effect, subparagraph (9) (B)
would not permit closing of a discussion of the proposal.
If it is not already covered by exemption (2) an agency's discussion
of its strategy in labor negotiations, or a Civil Service Commission
discussion of labor negotiation strategy for other agencies, could come
within paragraph (9) (B).
As with several other exemptions, exemption (9) employs a balanc-
ing test between the presumption in favor of openness and the need to
delay the disclosure of certain information in the interest of proper
administration. The use of the words "significant" and "significantly"
is intended to limit closings under this paragraph to instances wherein
disclosure at the time in question would have a considerable adverse
effect.
(10) This paragraph includes discussions specifically concerning the
agency's issuance of a subpoena, participation in a civil action, an
action in a foreign court or international tribunal, or an arbitration,
or the initiation, conduct, or disposition by the agency of a particular
case of formal adjudication involving a determination on the record
after opportunity for a hearing (whether or not pursuant to 5 U.S.C.
554):
A discussion of whether to commence a civil action or adjudicatory
proceeding, or to formally request the Justice Department to com-
mence a civil action, is included within the ambit of this exemption.
Among the reasons for this exemption are the need to allow an
agency to discuss in private its strategy in litigation in which it is
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involved and the fact that, when acting in an adjudicatory proceeding,
the agency is relying upon the written record and acting in a quasi-
judicial fashion.
Of course, if the public interest or another provision of law (see dis-
cussion of subsection (m), infra) so requires, a discussion falling
within the literal terms of this or any other exemption must be open to
the public.
Subsection (d)
Subsection (d) sets forth the procedures governing the closing of
meetings, or portions of meetings, subject to the criteria set forth in
subsection (c).
Subsection (d) (1) allows the closing of a meeting or the withhold-
ing of information only when a majority of the agency members votes
to take such action, and requires a separate vote for each meeting a
portion or portions of which are proposed to be closed. There is no
requirement that a vote on whether to close a meeting must itself be
taken at a meeting, and the seriatim marking of a written tally sheet
would be a permissible means of taking such a vote. If, though, a vote
on whether to close a meeting is taken at that meeting or a prior meet-
ing, the vote and all discussion leading up to it must be open unless
closed under one of the exemptions set forth in subsection (c).
Subsection (d) (1) permits a single vote to be taken with respect
to a series of portions of meetings if all are to be held within thirty
days after the first and all involve the same particular item (i.e., not
just a general discussion of a generic subject).
No proxy votes may be cast in a vote on whether to close a meeting,
and the vote of each agency member must be recorded so as to permit
identification by name of how each member has voted.
Subsection (d) (2) permits any person whose interests may be di-
rectly affected by a portion of a meeting to request that it be closed
under exemption (5) (accusation of a crime), (6) (personal privacy)
or (7) (investigatory records). If any agency member so requests, the
agency must vote by recorded vote whether to close the meeting in
response to the request.
Subsection (d) (3) requires that within one day after a vote on
whether to close a meeting or withhold information, the agency must
make publicly available a written statement setting forth the vote
of each member. All such votes must be made public in this manner,
even if the decision has been to keep the meeting open or to release
the information in question. This will enable the general public to
be aware of an agency member's overall voting record on openness
questions.
Subsection (d) (3) also requires, that if a meeting is to be closed
to the public, the agency shall, within one day after the decision to
close is reached, make publicly available a. full written explanation
of the action and a. list of the names and affiliations of all persons
expected to attend the meeting. Such an explanation should note the
paragraph or subparagraph of subsection (c) which is the basis for
the closing, and should explain how the discussion falls into that
exemption and the factors that were considered in reaching the deci-
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sion to close. It should in every instance be as detailed as possible
without revealing the exempt information.
This subsection and others in the bill require that certain infor-
mation be made available to the public. The committee, desiring to
avoid the expense and delay attendant upon requiring publication of
such matter in the Federal Register, has not mandated this in any
instance. The committee, does intend, though, that all reasonable means
be used to assure that, the public is fully informed of such informa-
tion. Means of publicizing such information should include posting
notices on the agency's public notice boards, publishing them in publi-
cations whose readers may have an interest, and sending them to the
individuals on the agency's general mailing list or a mailing list main-
tained for those who desire to receive such material. Publication in the
Federal Register, while not mandated by the bill, provides a further
potential means of publicizing these announcements and should be
used wherever possible.
Subsection (d) (4) permits any agency a majority of whose meetin
may properly be closed pursuant to exemptions (4), (8), (9) (A),
or (10) to provide by regulation for the use of an expedited procedure
for the closing of meetings coming within those exemptions. Closings
under this paragraph will not be subject to the following requirements
normally imposed by the bill : providing one week's advance notice of
the meeting; taking a vote on whether close prior to the time of the
meeting; providing an explanation for the closing; providing advance
notice of the name of an official who will respond to requests for
information about the meetings; and taking a vote of the agency
membership to change. the agenda for a meeting after it has originally
been announced.
Closing will be permitted under this provision only if the agency
so votes by recorded vote no later than the beginning of the meeting
or portion in question and gives public notice of the date, place and
subject matter of each portion of the meeting at the earliest practi-
cable time and in no case later than the commencement of the meeting
or portion. While the vote to close is not required to be made public
within one day after it is taken, it must be made public as promptly
as is physically possible.
Subsection (d) (4) will simplify closing procedures for agencies
regulating securities. commodities, and financial institutions, who must
often meet on very short notice, and agencies whose primary or sole
responsibility is to conduct adjudicatory proceedings. Examples of
agencies expected to qualify under this paragraph are the Securities
and Exchange Commission, the Federal Reserve Board and the Na-
tional Labor Relations Board.
Subsection. (e)
This subsection requires a week's public notice of the date, place,
and subject matter of a meeting, as well as whether it is to be open
or closed and the name. and telephone number of an agency official
who will respond to requests for information regarding the meeting.
The one-week period may be shortened if a. majority of the agency
membership votes by recorded vote that the agency business so re-
quires, in which case the announcement shall be made. at the earliest
practicable time and in no case later than the commencement of the
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case of a transcript) or transcription (for a recording) and, when in
the public interest, or primarily of benefit to the public, the material
should be furnished without charge. In no instance should fees be
set with the purpose of discouraging public requests for transcripts or
transcriptions; their sole purpose is to permit recovery of some or all
of the direct cost of providing them.
Subsection (f) (2) requires that written minutes be made of all
neetings open to the public, and that they be made available for public
inspection without charge. Copies are to be furnished to the public
at no greater than the actual, direct cost of duplication or, if in the
public interest without charge. The minutes shall be maintained for
a period of at least two years after the meeting.
Most, if not all agencies already keep minutes of their meetings.
This provision woulcfperinit an individual who is unaware of or unable
to attend an open meeting to ascertain with ease what transpired
there.
Subsection (g)
This subsection required each agency. within 180 days after the date
of enactment of this section and following consultation with the Office
of the Chairman of the Administrative Conference of the United
States and 30 days' notice for comment in the Federal Register, to
promulgate regulations to implement subsections (b) through (f).
Should an agency fail to promulgate regulations within the 180-day
period, any person may bring a proceeding in the United States Dis-
trict Court for the District of Columbia to require promulgation.
Once regulations have been promulgated by an agency, they are
subject to challenge by any person in the United States Court of Ap-
peals for the District of Columbia Circuit. Such a proceeding would
be subject to the same statute of limitations as any other proceeding
challenging a rule-making order of the agency in question. See, e.g.,
28 U.S.C. ? 2344, 47 U.S.C. ? 402 (c). This limitation of time for a
direct challenge to the regulations is of course not intended to limit
the right of a litigant to question their validity when they are applied
to him at some later date. Funetiovai Music, Inc. v. FCC, 274 F.2d
.543 (D.C. Cir. 1958), cert. denied, 361 U.S. 813 (1959).
Subsection (h)
Subsection (h) permits any person to bring an action in a United
States District Court against an agency or any members thereof to
enforce the requirements of subsections (b) through (f). Such a suit
must be commenced no later than 60 days after the meeting in ques-
tion, except that if public announcement in accord with this section
is not made, the plaintiff may commence his action at any time up to 60
days after a public announcement of the meeting is in fact made. As
in subsections (d) and (e). any public announcement must be made
in a manner calculated to assure its wide dissemination in order to
qualify as a "public announcement" as that term is used herein. The
plaintiff need not pursue any remedies or appeals within the agency
prior to bringing suit under this subsection.
An action may be brought in the district wherein the plaintiff resides
or has his principal place of business, or where the agency in question
has its headquarters. Venue provisions permitting the plaintiff to sue
where lie resides are applicable generally to actions against officers
of the United States, 28 U.S.C. ? 1391 (e), as well as in actions under
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meeting or portion in question. Such a vote shall be made public as
promptly as it physically possible.
No change may be made in any of the items required to appear in
the meeting notice once it has been made public except by a recorded
vote of the majority of the agency upon a. determination that the
agency business requires the change and that no earlier announce-
ment thereof was possible. The agency must announce the change and
the vote of each member at the earliest practicable time and in no case
later than the commencement of the meeting or portion in question.
The subject-matter identification required by this subsection must
be of a specific nature, e.g., the docket names or titles and numbers,
rather than a general statement as to the generic subjects to be dis-
cussed. Affording the public less than one week's notice, or making
changes after the muting has been publicly announced, should occur
only on an emergency basis.
Subsection (f)
Subsection (f) (1) requires that a complete, verbatim transcript or
electronic recording be made of any meeting or portion closed to the
public, except for meetings closed under exemption (10) (civil actions
and adjudications). Once the meeting has been concluded and the
transcript or recording prepared, the agency must make public such
portions of it as it determines (by recorded vote) not to contain in-
formation exempt from disclosure under subsection (c.). In place. of
each deletion, the agency must supply a, written explanation of the
reason therefor and the identity of the statute said to permit the dele-
tion. This explanation would not be required to disclose exempt
information.
The transcript or recording must be made easily accessible to the
public and available for inspection without charge. If made available
in the form of a recording, provision must be made so that the identity
of each speaker is disclosed. The agency must furnisli copies of the
transcript (or transcription of the recording) at no greater than the
actual, direct cost of duplication; if the public interest so requires,
copies shall be made available without charge.
A complete copy of the transcript, or recording must be maintained
for two years after the meeting or until one year after the conclusion
of the proceeding in question, whichever occurs later.
The premise of this bill is that almost all agency meetings will be,
open, and that as a result, relatively few transcripts or recordings
will have to be made. One reason for requiring a transcript or record-
ing is that, once a closed meeting is actually held, most or all of it may
turn out to be non-exempt. The existence of the transcript or record-
ing allows the release of the discussion as soon as this fact becomes
apparent (albeit after the meeting has been held). A second reason,
related to judicial review. is discussed under subsection (h), infra.
Within a transcript or recording. deletions should be made only
where the deleted material is exempt under subsection (c). Of course,
the agency must maintain in its files a complete copy, without any
deletions, for the period set forth in the last sentence of subsection
(f) (1).
Agency fees for duplication should be uniform and contained in
published regulations, as is the case under the Freedom of Information
Act. Fees must not exceed the actual, direct cost of duplication (in the
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the Freedom of Information Act, 5 U.S.C. ? 552, and the privacy Act
of 1974. 5 U.S.C. ? 552a.
The defendant must serve his answer to a complaint in such an
action within 20 days after the complaint is served upon him, and the
court may extend this limit for up to 20 additional days upon a show-
ing of good cause therefor. A showing of good cause requires not
merely a conclusory recital that additional time is required, but an
affidavit setting forth facts which justify an extension in the particu-
lar case.
The burden of proof is upon the agency to sustain the closing, with-
holding of information, or other action alleged to have been taken
improperly. The reasons for this requirement are two : first and fore-
most, the presumption is in favor of openness; and second, the agency
will in almost every instance be in exclusive possession of the facts
relevant to the agency decision.
In considering a case under this section, the court may examine. in
chambers any portion of a transcript or electronic recording of a
closed meeting, and may also take an additional testimonial or docu-
mentary evidence it deems necessary.
The court may award any appropriate relief (other than money
damages), including an injunction against future violations of this
section or a declaratory judgment that a certain practice or policy is
unlawful. The court may also order the release of any portion of the
transcript, recording, or transcription as does not contain information
specifically exemplified from disclosure under subsection (c). The
court, when acting solely under this subsection, is not authorized to
set aside, enjoin, or invalidate any substantive agency action taken or
discussed at the meeting in relation to which a violation of this section
occurred.
The power of the court to release the non-exempt portion of a tran-
script, recording, or transcription of an unlawfully closed meeting
points up another reason for requiring such records to be made. Since
a judicial determination that a meeting was unlawfully closed will in
most instances come long after the meeting has been held, and since
the substantive action taken at the meeting cannot be nullified when
the court is acting solely under this subsection, the possibility of find-
ing out what transpired at the meeting represents the only realistic
remedy available to a plaintiff.
Subsection (i)
This subsection authorizes a court otherwise empowered by law to
review an agency action to consider in the course of its review whether
the agency violated this section. This provision does not make review-
able any action that is not reviewable on another basis, nor does it
make applicable to a proceeding for review of a substantive agency
action the limitations of time and other procedural aspects of judicial
review under subsection (h). A court reviewing compliance with this
section under subsection (i) may afford any relief it deems appro-
priate. This might, in a rare instance, include nullification of the
substantive agency action.
Subsection (j)
Subsection (j) authorizes the court to assess against any party
reasonable attorney fees and other litigation costs reasonably incurred
by any other party who substantially prevails in an action brought
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under subsection (g), (h), or (i), except that costs may be assessed
against an individual agency member only where the court finds that
lie has intentionally and repeatedly violated this section, and against
the plaintiff only where the action was commenced primarily for friv-
olous or dilatory purposes. 'When costs are assessed against an agency.
the court may assess them against the United States in lieu of the
agency or may permit the plaintiff to elect whether to have them
assessed against the agency or the United States.
While the concept of rendering individual agency members liable
for attorney fees (albeit only in extraordinary instances) appears
to be a novel one in Federal law, the committee notes that the
Privacy Act of 1974, 5 U.S.C. ? 552a, contains criminal penalties for
violations, and that the Freedom of Information Act, 5 U.S.C. ? 552,
requires the Civil Service Commission to institute 'disciplinary pro-
ceedings where agency personnel act arbitrarily or capriciously in
withholding documents thereunder. Further, of the 49' states that have
open meeting laws, 24 impose criminal penalties for violations by
government officials, two more provide for civil penalties, and 19 ren-
der the substantive action taken at an unlawfully closed meeting void
or voidable.
The provision for liability on the part. of a plaintiff or individual
agency member should rarely have to be used, and any invocation of
it should be attended by notice, an opportunity to be heard, and any
other applicable aspects of due process of law.
Subsection (k)
This subsection requires each agency subject to this section to report
annually to Congress regarding its compliance, including a tabulation
of the total number closed to the public, the reasons for closings, and
a description of any litigation brought against the agency under this
section (including any costs assessed against the agency).
Subsection (1)
This subsection provides that this section is not intended to alter
rights under the Freedom of Information Act, 5 T?.S.C. ? 552, except
as expressly provided. The provisions of this section, rather than the
Freedom of Information Act, shall apply to transcripts or recordings
made in order to comply with this section; as is the case under that
act, however, the agency must demonstrate that the material in a
transcript would, if released, have the effect protected under subsec-
tion (c). Since these items must be retained for a specific time period
under subsection (f) (1), this subsection removes them from the cov-
erage of the Federal Records Act, 44 U.S.C. ? 3301 et seq., which con-
tains general standards for the disposal of agency records.
Subsection (m)
Subsection (m) provides that this section does not constitute au-
thority to withhold information from Congress and does not authorize
the closing of any agency meeting otherwise required by law to be
open.
Subsection (n)
Subsection (n) provides that if a record, including a transcript or
electronic recording made pursuant. to this section, is accessible to
an individual tinder the Privacy Act of 1974, 5 U.S.C. ? 552a, it may
not be withheld from him on the basis of this section.
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Subsection (a)
Subsection (o) provides that in the event any meeting is subject to
the provisions of the Federal Advisory Committee Act, 5 U.S.C. App.
I, as well as the provisions of this section, the provisions of this section
shall govern. An example of this is a meeting between the collegial
body heading an agency and one of the agency's advisory committees.
Section 4 would establish for the first time a definite, general statu-
tory statement as to the limitations and procedures governing ex parte
communications with respect to agency proceedings. At present, such
limitations and procedures are governed by agency rules and by con-
stitutional standards, neither of which have the clarity, uniformity,
and general public availability of a statute.
Section 4(a) adds a new subsection (d) to 5 U.S.C. ? 557, enacting
the general prohibition ex parte communications relative to the merits
of a pending proceeding between an agency decision making official
and an interested person outside the agency. The subsection also re-
quires placing such communications on the public record if they do
occur.
The prohibition only applies to formal agency adjudication. Infor-
mal rulemaking proceedings and other agency actions that are not
required to be on the record after an opportunity for a hearing will
not be affected by the provision.
The ex parte rules established by this section are not intended to
repeal or modify the ex parte rules agencies have already adopted by
regulation, except to the extent the regulations are inconsistent with
this section. If an agency already has more stringent restrictions
against ex parte contacts, this section will supplement those provi-
sions. It is expected. that each agency will issue new regulations
applying the general provisions of this section in a way best designed
to meet its special needs and circumstances.
The rule forbids ex parte communications between interested per-
sons outside the agency and agency decisionmakers. The provision
exempts only those ex parte communications authorized by law to be
disposed of in such a manner. This exemption might include, for ex-
ample, requests by one party to a proceeding for subpoenas, adjourn-
ments, and, continuances.
Paragraph (1) (A) forbids contacts between an interested person
outside the agency and any agency member, administrative law judge,
or other employee involved in the decisionmaking process. The word
"employee" includes both those working for the agency full time and
individuals working on a. part-time basis, such as consultants.
The term "interested person" is intended to be a wide, inclusive
term covering any individual or other person with an interest in the
agency proceeding that is greater than the general interest the public
as a whole may have. The interest need not be monetary, nor need a
person to be a party to, or intervenor in, the agency proceeding to
come under this section. The term includes, but is not limited to,
parties, competitors, public officials, and nonprofit or public interest
organizations and associations with a special interest in the matter
regulated. The term does not include a member of the public at large
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who makes a casual or general expression of opinion about a pending
proceeding.
The rule applies to interested persons who "make or cause to be
made" an ex parte communication. The latter phrase contemplates
indirect contacts which the interested person approves or arranges.
For example, an interested person may ask another person outside
the agency to make an ex parte communication. The section would
apply to the individual who requested that the communication be
made. However, if the second person contacts the agency about the
first individual's interest in the case. without that person's knowledge,
approval, or encouragement, the first person would not be guilty of
causing an ex parte contact.
Contacts are prohibited with any agency member administrative
law judge, or other employee who is or may reasonably be expected to
be involved in the agency's deliberations. The words "may reasonably
be expected" make it clear that absolute certainty is not required when
predicting whether an agency employee will be involved in the de-
cisional process. In some cases it will be clear that an employee does
not come within the ambit of the provision. For example, an agency
attorney litigating the case for the agency will. not be involved in the
decisionmaking process of the agency and would not be subject to the
ex parte provision. Under other circumstances, the official's status may
not be so clear. In such case, the fact that an interested person chooses
to communicate with a particular employee in an ex parte manner is
itself some evidence that the official may reasonably be expected to be
involved in the decisional process. To assist the parties and the public
in determining which agency officials may be involved in the decisional
process, an agency may wish to publish, along with notice of the pro-
ceeding, a list of officials expected to be involved in the decisional proc-
ess. The ex parte rules would still apply to an agency official involved
in the decisional process even if he were not on such a list.
Communications solely between agency employees are excluded from
the section's prohibition. Of course, ex parte contacts by staff acting
as agents for interested persons outside the agency are clearly within
the scope of the prohibitions.
The subsection prohibits an ex parte communication only when it
is "relative to the merits of the proceeding." This phrase is intended
to be construed broadly and to include more than the phrase "fact
in issue" currently used in the Administrative Procedure Act. The
phrase excludes procedural inquiries, such as requests for status re-
ports, which will not have an effect on the way the case is decided.
It excludes general background discussions about an entire industry
which do not directly relate to specific agency adjudication involving
a member of that industry, or to formal rulemaking involving the in-
dustry as a whole. It is not the intent of this provision to cut an agency
off from access to general information about an industry that an
agency needs to exercise its regulatory responsibilities, So long as the
communication containing such data does not discuss the specific
merits of a pending adjudication it is not prohibted by this section.
A request for a status report or a background discussion about an
industry may in effect amount to an indirect or subtle effort to influence
the substantive outcome of the proceedings. The judgment will have
to be made whether a particular communication could affect the
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agency's decision on the merits. In doubtful cases the agency official
should treat the communication as ex parte so as to protect the integrity
of the decisionmaking process.
Paragraph (1) (B) is the inverse of paragraph (1) (A). It prohibits
agency officials who are or who may be involved in the decisional
process from engaging in an ex parte contact with an interested per-
son. It embodies the same standards as paragraph (1) (A).
Paragraph (1) (C) states that if an ex parte communication pro-
hibited by this subsection is made or received by an agency official, he
must place on the proceeding's public record: (i) any written com-
munication, (ii) a memorandum stating the substance of any such
illegal oral communication, and (iii) any written statements, or memo-
randa of any oral statements made in response to the original ex parte
communication. The "public record" of the proceeding means the pub-
lic docket or equivalent file containing all the materials relevant to the
case readily available to the parties and the public generally. Material
may be part of the public record even though it has not been admitted
into evidence.
The purpose of this provision is to notify the opposing party and the
public, as well as all decisionmakers, of the improper contact and give
all interested persons a chance to reply to anything contained in the
illegal communication. In this way the secret nature of the contact is
effectively nullified. Agency officials who make an ex paste conact are
under the same obligation to record it publicly, as when an agency
official receives such a communication. In some cases, merely placing
the ex parte communication on the public record will not, in fact, pro-
vide sufficient notice to all the parties. Each agency should consider re-
quiring by regulation that in certin cases actual notice of the ex
parte communication to be provided to all parties.
Paragraph (1) (D) states that the officer presiding over the agency
hearings in the proceeding may require a party who makes a prohibited
ex parte communication to show cause why his claim or interest in the
proceeding should not be dismissed, denied, disregarded or otherwise
adversely affected because of the violation. This provision accompanies
section 4(c), which amends 5 U.S.C. S 556(d) to authorize an agency
to consider a violation of this section as grounds for ruling against
a party on the merits. Subparagraph (D) insures that the record
contains adequate information about the violation. The presiding offi-
cer need not require a party committing an ex parte contact to show
cause in every instance why the agency should not rule against him.
The matter rests within his discretion. As in the case of subsection
4(c), the presiding officer should require such a showing only if
consistent with the interests of justice and the policy of the underlying
statutes. Thus, a showing should not be required where the violation
was clearly inadvertent.
Paragraph (1) (E) requires that the prohibitions against ex parte
communications apply as soon as a proceeding is noticed for a hearing.
However, if a person initiating a communication before that time is
aware that notice of the hearings will be issued, the prohibitions would
apply from the time the person gained such awareness. An agency, if
it wishes, may require that the provisions of this section apply at any
point in the proceedings prior to issuance of the notice of hearings.
The new subsection 557(d) would also provide that section 557 is
not authority to withhold information from Congress. While the pro-
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22
hibitions on ex parte communications relative to the merits apply to
communications from Members of Congress, they are not intended to
prohibit routine inquiries or referrals of constituent correspondence.
Subsection 4(b) adds a definition of "ex parte communication" to
the definitions contained in the Administrative Procedure Act. The
term includes an "oral or written communication not on the public
record with respect to which reasonable prior notice to all parties is
not given." A communication is not ex parte if either, (1) the person
making it placed it on the public record at the same time it was made,
or (2) all parties to the proceeding had reasonable advance notice. If
a communication falls into either one of these two categories, it is not
ex parte. Where advance notice is given, it should be adequate to per-
mit other parties to prepare a possible. response and to be present when
the communication is made. As in subsection (a), "public record"
means the docket or other public file containing all the material rele-
vant to the proceedings. It includes, but is not limited to, the transcript
of the proceedings, material that has been accepted as evidence in the
proceedings, and the public file of related matters not accepted as evi-
dence in the proceeding. An individual who writes a letter concerning
the merits of the proceeding to a commissioner, and who places a copy
of the letter at the same time in the transcript of the proceedings, would
not have made an ex parte communication. However, a party who
wrote the same letter and sent it only to a commissioner, would have
committed a violation of the section even if the commissioner subse-
quently placed the letter in the public record.
Subsection 4(c) amends section 556(d) of title 5, so as to authorize
an agency to render a decision adverse to a party violating the prohibi
tion against ex parte communications. It is intended that this provision
apply to both formal parties and to intervenors whose interests are
equivalent to those of a party. This possible sanction supplements an
agency's authority to censure or dismiss an official who engages in an
illegal ex parte communication, or to prohibit an attorney who violates
the section from practicing before the agency. Such an adverse deci-
sion must be "consistent with the interests of justice and the policy of
the underlying statutes."
For example, the interests of justice might dictate that a claimant
for an old age benefit not lose his claim even if he violates the ex parte
rules. On the other hand, where two parties have applied for a license
and the applications are of relatively equal merit, an agency may rule
against a party who approached an agency head in an ex parte manner
in an effort to win approval of his license.
It is expected that an agency will rule against a party on the merits
under this subsection only in rare instances, and in no case wherein the
party demonstrates that the violation was inadvertent. However, the
committee felt it very important that an agency have this option avail-
able where the circumstances justify it.
SECTION 5
Section 5(a) conforms 39 U.S.C. $ 410(b) (1) to the open meeting
provisions of this bill and the Privacy Act by clarifying the applica-
bility of these statutes to the Postal Service.
Section 5 (b) amends exemption (3) of the Freedom of Information
Act, 5 U.S.C. ? 552, to conform it to exemption (3) of the open meeting
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I~fo
provisions of this bill and to overrule the decision of the Supreme
Court in Administrator, FAA v. Robertson, 422 U.S. 255 (1972).
Robertson held that exemption (3), which exempts from the coverage
of the Freedom of Information Act any information "specifically ex-
empted from disclosure by statute," includes within its ambit section
1104 of the Federal Aviation Act of 1958 (49 U.S.C. ? 1504), which
allows the FAA Administrator to withhold from the public any FAA
material when he believes that "a disclosure of such information
is not required in the interest of the public."
Believing that the decision misconceives the intent of exemption (3),
the committee recommends that the exemption be amended to exempt
only material required to be withheld from the public by any statute
establishing particular criteria or referring to particular types of in-
formation. The committee is of the opinion that this change would
eliminate the gap created in the Freedom of Information Act by the
Robertson case without in any way endangering statutes such as the
Atomic Energy Act of 1954, 42 U.S C. ?? 2161-66, which provides ex-
plicitly for the protection of certain nuclear data.
Under the amendment, the provision of the Federal Aviation Act
of 1958 that was the subject of Robertson, and which affords the FAA
Administrator cart blanche to withhold any information he pleases;
would not come within exemption 3. Similarly, the Trade Secrets Act,
18 U.S.C. 1905, which relates only to the disclosure of information
where disclosure is "not authorized by law," would not permit the
withholding of information otherwise required to be disclosed by the
Freedom of Information Act, since the disclosure is there authorized
by law. Thus, for example, if material did not come within the broad
trade secrets exemption contained in the Freedom of Information
Act, section 1905 would not justify withholding; on the other hand, if
material is within the trade secrets exemption of the Freedom of In-
formation Act and therefore subject to disclosure if the agency deter-
mines that disclosure is in the public interest, section 1905 must be
considered to ascertain whether the agency is forbidden from dis-
closing the information. See Charles River Park. "A", Inc. v. Dept. of
Housing and Urban Development, 519 F.2d 935, 941 n. 7 (t).C. Cir.
1975), and cases there cited.
Examples of statutes that could justify withholding under the
amended exemption (3) includes sections 706(b) and 709(e) of the
Civil Rights Act of 1964, as amended (42 U.S.C. ?? 2000e-5 (b), 2000e-
8(e)) and section 314(a) (3) of the Federal Election Campaign Act
(2 U.S.C. S 437g(a) (3) ), which require the Equal Employment Op-
portunity Commission and the Federal Election Commission, respec-
tively, to withhold certain information relating to informal concilia-
tion and enforcement efforts, and section 801 of the Federal Aviation
Act of 1958 (49 U.S.C. ? 1461), which prohibits the Civil Aeronautics
Board from publishing certain information relating to a foreign air
route application prior to its submission to the President for his de-
cision on the route award.
Section 6 provides that, with the exception of subsection (g) of the
new 5 U.S.C. ? 552b added by this act, the act shall take effect 180
days after the date of its enactment. Subsection (g), which requires the
affected agencies to promulgate regulations within 180 days after it
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takes effect, is to take effect upon enactment; this will assure that regu-
lations have been promulgated by the time the substantive provisions
of the open meeting portion of the bill come into force.
CHANGES IN EXISTING LAw MADE BY THE BILL, AS REPORTED
In compliance with clause 3 of rule XIII of the Rules of the House
of Representatives, changes in existing law made by the bill, as
reported, are shown as follows (existing law proposed to be omitted
is enclosed in black brackets, new matter is printed in italic, existing
law in which no change is proposed is shown in roman) :
TITLE 5, UNITED STATES CODE
CHAPTER 5-ADMINISTRATIVE PROCEDURE
SUBCHAPTER I-GENERAL PROVISIONS
SEC.
500. Administrative practice ; general provisions.
501. Advertising practice ; restrictions.
502. Administrative practice; Reserves and National Guardsmen.
503. Witness fees and allowances.
SUBCHAPTER II-ADMINISTRATIVE PROCEDURE
551. Definitions.
552. Public information ; agency rules, opinions, orders, records and proceedings.
552a. Records about individuals.
552b.
Open meetings.
553.
Rule making.
554.
Adjudications.
555.
Ancillary matters.
556.
Hearings ; presiding employees ;
powers and duties ; burden of proof ;
evidence ; record as basis of decision.
557.
Initial decisions ; conclusiveness ; review by agency ; submissions by
parties ; contents of decisions ; record.
558.
Imposition of sanctions ; determination of applications for licenses ; sus-
pension, revocation. and expiration of licenses.
559.
Effect on other laws ; effect of subsequent statute.
SUBCHAPTER III-ADMINISTRATIVE CONFERENCE
OF THE UNITED STATES
571.
Purpose.
572.
Definitions.
573.
Administrative Conference of the United States.
574.
Powers and duties of the Conference.
575.
Organization of the Conference.
576.
Appropriations.
*
* * s r
s
SUBCHAPTER TI-ADMINISTRATIVE PROCEDURE
? 551. Definitions
For the purpose of this subchapter-
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(12) "agency proceedings" means an agency process as defined
by paragraphs (5), (7), and (9) of this section; ;[and]
(.13) "agency action" includes the whole or a part of an agency
rule, order, license, sanction, relief, or the equivalent or denial
thereof, or failure to act[.] ; and
(14) "ex parte communication" means an oral or written com-
munication not on the public record with respect to which reason-
able prior notice to all parties is not given.
? 552. Public information; agency rules, opinions, orders,
records, and proceedings
(a) ***
* * * * * * *
(b) This section does not apply to matters that are-
(1) * * *
[(3) specifically exempted from disclosure by statute;]
(3) required to be withheld from the public by any statute
establishing particular criteria or referring to particular types
of information;
? 552b. Open Meetings
(a) For purposes of this section-
(1) tie term "agency" means the Federal Election Commission
and any agency, as defined in section 552(e) of this title, headed
by a collegial body composed of two or more individual members,
a majority of whom are appointed to such position by the Presi-
dent with the advice and consent of the Senate, and includes any
subdivision thereof authorized to act on behalf of the agency;
(2) the term "meeting" means the deliberations of at least the
number of individual agency members required to take action on
behalf of the agency where such deliberations concern the joint
conduct or disposition of agency business; and
(3) the term "member" means an individual who belongs to
a collegial body heading an agency.
(b) Except as provided in subsection (c), every portion of every
meeting of an agency shall be open to public observation.
(c) Except in a case where the agency finds that the public interest
requires otherwise, subsection (b) shall not apply to any portion of an
agency meeting and the requirements of subsections (d) and (e) shall
not apply to any information pertaining to such meeting otherwise
required by this section to be disclosed to the public, where the agency
properly determines that such portion or portions of its meeting or the
disclosure of such information is likely to-
(1) disclose matters (A) specifically authorized under criteria
established by an Executive order to be kept secret in the interests
of national defense or foreign policy and (B) in fact properly
classified pursuant to such Executive order;
(2) relate solely to the internal personnel rules and practices
of an agency;
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(3) disclose information required to be withheld from the pub-
lic by any statute establishing particular criteria or referring to
particular types of information;
(4) disclose trade. secrets and commercial or financial informa-
tion obtained from a person and privileged or confidential;
(5) involve accusing any person of a crime, or formally cen-
suring any person;
(6) disclose information of a personal nature where disclosure
would constitute a clearly unwarranted invasion of personal
privacy
(7) disclose investigatory records compiled for law enforce-
ment purposes, but only to the extent that the production of such
records would (A) interfere with enforcement proceedings, (B)
deprive a person of a right to a fair trial or an impartial adjudica-
tion, (C) constitute an unwarranted invasion of personal privacy,
(D) disclose the identity of a. confidential source and, in the case
of a record compiled by a criminal law enforcement authority in
the course of a criminal investigation, or by an agency conduct-
ing a lawful national security intelligence investigation, confcden-
tial information. furnished only by the confidential source, (E)
disclose investigative techniques and procedures,:or (F) endanger
the life or physical safety of lair enforcement personnel;
(8) disclose information contained in or relate(l to examination,
operating, or condition reports prepared by, on behalf of, or for
the use of an agency responsible for the regulation or supervision
of financial institutions;
(9) disclose information the premature disclosure of which
would-
(A) in the ease of an agency which regulates currencies,
securities, commodities, or financial institutions, be likely to
(i) lead to significant financial speculation, or (ii) signifi-
cantly endanger the stability of any financial institution; or
(B) in the case of any agency, be likely to significantly
frustrate implementation of a proposed agency action, except
that this subparagraph shall not apply in any instance where
the content or nature of the proposed agency action already
has been disclosed to the public by the agency, or where the
agency is required by law to make such disclosure prior to
taking final agency action on such proposal; or
(10) specifically concern the agency's issuance of a subpena, or
the agency's participation in a clvil action, an action in a foreign
court or international tribunal, or an arbitration; or the initiation,
conduct, or disposition by the agency of a particular case of
formal agency adjudication pursuant to the procedures in section
554 of this title or otherwise involving a determination on the rec-
ord after opportunity for a hearing.
(d) (1) Action under subsection (c) to close a portion or portions
of an agency meeting shall be taken. only when a majority of the entire
membership of the agency votes to take such action. A separate vote of
the agency members shall be taken kith respect to each. agency meet-
ing a portion or portions of which are proposed to be closed to the
public pursuant to subsection (c), or with respect to any information
?r.hich is proposed to be withheld under subsection (e). A single vote
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may be taken with respect to a series of portions of meetings which
are proposed to be closed to the public, or with respect to any infor-
mation concerning such series, so long as each portion of a meeting in
such series involves the same particular matters, and is scheduled to be
held no more than thity days after the initial portion of a meeting in
such series. The vote of each agency member participating in such vote
shall be recorded and no proxies shall be allowed.
(2) Whenever any person whose interests may be directly affected by
a portion of a meeting requests that the agency close such portion to the
public for any of the reasons referred to in paragraph (5), (6), or (7)
of subsection (c), the agency, upon. request of any one of its members,
shall vote by recorded vote whether to close such meeting.
(3) Within one day of any vote taken pursuant to paragraph (1) or
(2), the agency shall make publicly available a written copy of such
vote reflecting the vote of each member on the question. I f a portion, of
a meeting is to be closed to the public, the agency shall, within one day
of the vote taken pursuant to paragraph (1) or (2) of this subsection,
make publicly available a full written explanation of its action closing
the portion together with a list o f all persons expected to attend the
meeting and their affiliation.
(4) Any agency, a majority of the portions of whose meetings may
properly be closed to the public pursuant to paragraph (4), (8),
(9) (A), or (10) of subsection (c), or any combination thereof, may
provide by regulation for the closing.o f such portions in the event that
a majority of the members of the agency votes by recorded vote at the
beginning of such meeting, or portion thereof, to close the exempt por-
tion or portions of the meeting, and a copy of such vote, reflecting the
vote of each member on the question, is made available to the public.
The provisions of paragraphs (1), (2), and (3) of this subsection. and
subsection (e) shall not apply to any portion of a meeting to which
such regulations apply: Provided, That the agency shall, except to the
extent that such information is exempt from disclosure under the pro-
visions of subsection (c), provide the public with public announcement
of the date, place, and subject matter of the meeting and each portion
thereof at the earliest practicable time and in no case later than the
commencement -of the meeting or portion in question.
(e) In the case of each meeting, the agency shall make public an-
nouncement, at least one week before the meeting, of the date, place,
and subject matter of the meeting, whether it is to be open or closed to
the public, and the name and phone number of the o7Zcial designated
by the agency to respond to requests for information about the meeting.
Such announcement shall be made unless a majority of the members of
the agency determines by a recorded vote that agency business requires
that such meeting be called at an earlier date, in'which case the agency
shall make public announcement of the date, place, and subject matter
of such meeting, and whether open or closed to the public; at the ear-
liest practicable time sand in no case later than the commencement of
the meeting or portion in question.. The time, place, or subject matter of
a meeting, or the determination of the agency to open or close a meet-
ing, or portion of a meeting, to the public, may be changed following
the public announcement required by this paragraph only if (1) a
majority of the entire membership of the agency determines by a re-
corded vote that agency business so requires and that no earlier an-
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nowneement of the change was possible, and (2) the agency publicly
announces such change and the vote of each member upon such, change
at the earliest practicable time and in no case later than the commzence-
ment of the meeting or portion in question.
(f) (1) A complete transcript or electronic recording adequate to
record fully the proceedings shall be made of each meeting, or portion
of a meeting, closed to the public, except for a meeting, or portion of a
meeting, closed to the public pursuant to paragraph, (10) of sub-
section (c). The agency shall make promptly available to the public,
in a location easily accessible to the public, the complete transcript
or electronic recording of the discussion at such meeting of any item
on the agenda, or of the testimony of any witness received at such
meeting, except for such portion or portions of such discussion or
testimony as the agency, by recorded vote taken subsequent to the
meeting and promptly made available to the public, determines to
contain information specified in paragraphs (1) through (10) of
subsection (c). In place of each portion deleted from such a transcript
or transcription the agency shall supply a written, explanation of
the reason for the deletion., and the portion o:f subsection (c) and
any other statute said to permit the deletion. Copies of such, transcript,
or a transcription of such electronic recording disclosing the identity
of each speaker, shall be furnished to any person at no greater than
the actual cost of duplication. or transcription or, if in the public
interest, at no cost. The agency shall maintain a complete verbatim
copy of the transcript, or a complete electronic recording of each
meeting, or portion of a meeting, closed to the public, for a period
of at least two years after such meeting, or until one year after the
conclusion of any agency proceeding with respect to which the meet-
ing, or a portion thereof, was held, whichever occurs later.
(2) Written minutes shall be -made of any agency meeting, or por-
tion thereof, which is open to the public. The agency shall make such
minutes promptly available to the public in, a location easily accessible
to the public, and shall maintain such. minutes for a period of at least
two years after such meeting. Copies of such minutes shall be fur-
nished to any person at no greater than the actual cost of duplication
thereof or, if in the public interest, at no cost.
(q) Each agency subject to the requirements of this section shall,
within 180 days after the date of enactment of this section, following
consultation with the O#ce of the Chairman o f the Administrative
Conference of the United States and published notice in the Federal
Register of at least thirty days and opportunity for written com-
ment by any persons, promulgate regulations to implement the re-
quirements of subsections (b) through. (f) of this section. And person
may bring a, proceeding in the United States Distract Court for the
District of Columbia to require an agency to promulgate such regu-
lations if such, agency has not promulgated such regulations within
the time period specified herein. Subject to any limitations of time
therefor provided by law, any person may bring a proceeding in the
United States Court of Appeals for the District of Columbia to set
aside agency regulations issued pursuant to this subsection that are
not in accord with. the requirements of subsections (b) through (f)
of this section, and to require the promulgation of regulations that
are in accord with such subsections.
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(h) The district courts of the United States have jurisdiction to
enforce the requirements of subsections (b) through (f) of this section.
Such actions may be brought by any person against an agency or its
members prior to, or within sixty days after, the meeting out of which
the violation Of this section arises, except that if public announcement
of such meeting is not initially provided by the agency in accordance
with the requirements of this section, such action may be instituted
pursuant to this section at any time prior to sixty days after any public
announcement of such meeting. Such actions may be brought in the
district wherein. the plaintiff resides, or has his principal place of
business, or where the agency in question has its headquarters. In
such actions a defendant shall serve his answer within twenty days
after the service of the complaint, but such time may be extended by
the court for up to twenty additional days upon a showing of good
cause therefor. The burden is on the defendant to sustain his action.
In deciding such cases the court may examine in camera any portion
of a transcript or electronic recording of a meeting closed to the public,
and may take such additional evidence as it deems necessary. The court,
having due regard for orderly administration and the public interest,
as well as the interests of the party, may grant such, equitable relief
as it deems appropriate, including granting an injunction against
future violations of this section, or ordering the agency to make avail-
able to the public such portion of the transcript or electronic record-
in of a meeting as is not authorized to be withheld under subsection
(c) of this section. Except to the extent provided in subsection (i)
of this section, nothing in this section confers jurisdiction on any
district court acting solely under this subsection to set aside, enjoin
or invalidate any agency action taken or discussed at an agency
meeting out of which the violation of this section arose.
(i) Any Federal court otherwise authorized by law to review
agency action may, at the application of any person properly par-
ticipating in the judicial review proceeding, inquire into vioations
by the agency of the requirements of this section-
ection and afford any such
relief as it deems appropriate.
(j) The court may assess against any party reasonable attorney
fees and other litigation costs reasonably incurred by any other party
who substantially prevails in any action brought in accordance with
the provisions of subsection (g), (h), or (i) of this section, except
that costs may be assessed against an individual member of an agency
only in the case where the court finds such agency member has inten-
tionally and repeatedly violated this section and against the plaintiff
only where the court finds that the suit was initiated by the plaintiff
primarily for frivolous or dilatory purposes. In the case of assessment
of coasts against an agency, the costs may be assessed by the court
against the United States.
(k) Each agency subject to the requirements of this section shall
annually report to Congress regarding its compliance with such
requirements, including a tabulation of the total number of agency
meetings open to the public, the total number of meetings closed to
the public, the reasons for closing such meetings, and a description
of any litigation brought against the agency under this section, includ-
ing any costs assessed against the agency in such litigation (whether
or not paid by the agency).
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(1) Except as specifically provided in this section, nothing herein
expands or limits the present rights of any person wader section 552
othis title, except that the provisions of this Act shall govern in
t case of any request made pursuant to such action to copy or inspect
the transcripts or electronic recordings described in subsection (f) of
this section. The requirements of chapter 33 of title 441, United States
Code, shall not apply to the transcripts and electronic recordings de-
scribed in subsection (f) of this section.
(m) This section does not constitute authority to withhold any in-
formation from Congress, and does not authorize the closing of any
any agency meeting or portion thereof otherwise required by law to be
open.
(n) Nothing in this section authorizes any agency to withhold from
any individual any record, including transcripts or electronic record-
ings required by this Act, which is otherwise accessible to such individ-
ual under section 552a of this title.
(o) In the event that any meeting is subject to the provisions of the
Federal Advisory Committee Act as well as the provisions of this sec-
tion, the provisions of this section shall govern..
? 556. Hearings; presiding employees; powers and duties; burden
of proof ; evidence ; record as basis of decision
(a) .~ * *
* * * * * * *
(d) Except as otherwise provided by statute, the proponent of a rule
or order has the burden of proof. Any oral or documentary evidence
may be received, but the agency as a matter of policy shall provide
for the exclusion of irrelevant, immaterial, or unduly repetitious evi-
dence. A sanction may not be imposed or rule or order issued except
on consideration of the whole record or those parts thereof cited by a
party and supported by and in accordance with the reliable, probative,
and substantial evidence. The agency may to the extent consistent with
the interests of Justice and the policy of the underlying statutes ad-
ministered by the agency, consider a violation of section 557(d) of this
title sufficient grounds for a decision adverse to a person or party
who has committed such violation or caused such violation to occur.
A party is entitled to present his case or defense by oral or documen-
tary evidence, to submit rebuttal evidence, and to conduct such cross-
examination as may be required for a full and true disclosure of the
facts. In rule making or determining claims for money or benefits or
applications for initial licenses an agency may, when a party will not
be prejudiced thereby, adopt procedures for the submission of all or
part of the evidence in written form.
557. Initial decisions; conclusiveness; review by agency; sub-
missions by parties; contents of decisions; record
(a) * * *
(d) (1) In any agency proceeding which is subject to subsection (a)
of this section, except to the extent required for the disposition of ex
parte matters as authorized by law-
(A) no interested person outside the agency shall make or cause
to be made to any member of the body comprising the agency, ad-
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ministrative law judge, or other employee who is or may reason-
ably be expected to be involved in the decisional process of the
proceeding, an ex parte communication relative to the merits of the
proceeding;
(B) no member of the body comprising the agency, administra-
tive law judge, or other employee who is or ma reasonably be
expected to be involved in the decisional process of the proceedingy,
shall make or cause to be made to any interested person outside the
agency an ex parte communication relative to the merits of the
proceeding;
(C) a member of the body comprising the agency, administra-
tive law judge, or other employee who is or may reasonably be
expected to be involved in the decisional process of such proceeding
who receives, or who makes or causes to be made, a communica-
tion prohibited by this subsection shall place on the public record
of the proceeding:
(i) all such written communications;
(ii) memoranda stating the substance of all such oral com-
munications; and
(iii) all written responses, and memoranda stating the sub-
stance o f all oral responses, to the materials described in
clauses (i) and (ii) of this subparagraph;
(D) in the event of a communication prohibited by this subsec-
tion and made or caressed to be made by a party or interested person,
the agency, administrative law judge, or other employee pre-
siding at the hearing may, to the extent consistent with the inter-
ests of justice and the policy of the underlying statutes, require the
person or party to show cause why his claim or interest in the
proceeding should not be dismissed, denied, disregarded, or other-
wise adversely a ected on account of such violation; and
(E) the prohibitions of this subsection shall apply beginning
at such time as the agency may designate, but in no case shall
they begin to apply later than the time at which a proceeding
is noticed for hearing unless the person responsible for the com-
munication has knowledge that it will be noticed, in which ease
the prohibitions shall apply beginning at the time of his acquisi-
tion of such. knowledge.
(0) This section does not constitute authority to withhold informa-
tion from Congress.
SECTION 410 OF TITLE 39, UNITED STATES CODE
? 410. Application of other laws
(a) Except as provided by subsection (b) of this section, and ex-
cept as otherwise provided in this title or insofar as such laws remain
in force as rules or regulations of the Postal Service, no Federal law
dealing with public or Federal contracts, property, works, officers,
employees, budgets. or funds, includinsz the provisions of chapters 5
and 7 of title 5, shall apply to the exercise of the powers of the Postal
Service.
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(b) The following provisions shall apply to the Postal Service:
(1) Section 552 (public information), section 552a (records
about individuals), section 552b (open meetings), section 3110
(restrictions on employment of relatives), section 3333 and chap-
ters 71 (employee policies) and 73 (suitability, security, and
conduct of employees), and section 5532 (dual pay) of title 5,
except that no regulation issued under such chapters or sec-
tions shall apply to the Postal Service unless expressly made
applicable ;
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ADDITIONAL VIEWS OF HON. FRANK HORTON (CON-
CURRED IN BY HON. JOHN N. ERLENBORN, HON. JOHN
W. WYDLR, HON. CLARENCE J. BROWN, HON. SAM
STEIGER, HON. GARRY BROWN, HON. EDWIN B. FOR-
SYTHE, AND HON. WILL-IS D. GRADISON, JR.)
INTRODUCTION
The undersigned subscribe wholeheartedly to the objectives of this
legislation. The public's faith in the integrity of government rests on
public understanding of the reasons for governmental decisions, and
on the accountability of government officials for particularly those
decisions which set legislative or administrative policies which impact
on the nation as a whole. However, as recognized in the "Declaration
of Policy" which begins on the first page of H.R. 11656, the public is
not necessarily served by complete and unfettered disclosure of all
government decisionmaking processes. The words "fullest practicable
information" as used in the bill indicate the need for certain sensible
limitations.
Our differences with the Committee bill are relatively few, but they
afford an opportunity for highly significant improvements. Our
principal concern is that the Congress which has enacted the two basic
planks for federal information policies, the Freedom of Information
Act and the Privacy Act, should adopt a sunshine bill which is con-
sistent with the principles laid down in the two landmark bills we
have already enacted. The Committee bill does not fully meet this
standard since it erodes the clarity and firmness of the FOI Act
exemptions, and threatens to erode the privacy protections we have
erected for those involved in adjudications before collegial agencies.
We believe that a number of provisions of the Committee bill are
inconsistent with the Declaration of Policy contained in the bill itself,
and that these provisions would permit or mandate disclosures which
would injure the rights of individuals and injure the ability of the
Government to carry out its responsibilities.
We addressed our concerns with several specific provisions of H.R.
11656 in 'Committee, and we feel it is possible to amend the bill in
a way that would let every bit as much sunshine behind the doors of
government agency deliberations and provide a brand of sunshine
which is less clouded by procedural red tape and confusion than that
created by the Committee bill.
Our differences with H.R. 11656 are few but important. They in-
clude (1) the verbatim transcripts requirement for closed meetings,
(2) the definition of "agency", (3) the definition of "meeting", (4) the
identification of persons expected to attend a closed meeting, (5) the
prescribed venue for actions brought under this legislation, (6) the
personal liability of individual agency officials, and (7) the unfettered
disclosure of all ex parte communications. These differences are sum-
marized below.
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NEEDED IMPROVEMENTS
(1) The Verbatim Transcript Requirement
The verbatim transcript requirement of H.R. 11656 could effec-
tively destroy the provisions of the bill which permit certain meetings
to be closed. While the provisions of the bill enable an agency to delete,
by recorded vote at a subsequent meeting, sensitive portions of a tran-
script, they also require the agency to furnish the public what, in
effect, are summaries of the deleted portions. In the case of agencies
involved in the regulation of financial institutions, for example, harm-
ful inferences drawn from the deletions could result in market specu-
lation or damage to the stability of our financial markets and
institutions.
The possibility of later disclosure of a verbatim transcript will
inhibit free discussion about sensitive matters and thus impair the
decisionmaking process in instances where candor is essential.
Moreover, the effect of the transcript requirement of the bill when
coupled with relevant procedural requirements would lead to a situa-
tion bordering on the ridiculous.
The bill provides that votes to close meetings must. be cast in person,
no proxies being permitted. Thus a sleeting must be held to vote an
closing a subsequent meeting or meetings, and another meeting must
be held to vote on any change in the time, place, or subject matter of a
meeting already announced.
When these procedural requirements are coupled with the verbatim
transcript or electronic recording requirements, the prospect is one
of mind boggling infinity. Thus, when a meeting is properly closed,
the complete transcript or electronic recording of the proceedings must
be made available to the public except for such portions determined by
a recorded vote to fall within the exemptive provisions. In order to
avoid the disclosure of such portions of the transcript, the meeting
called to discuss, consider and vote on the proposed deletions must also
be closed pursuant to the procedural requirements cited above. Since
this meeting would be closed to consider information coming within
the exemptive provisions of the bill, the complete transcript or elec-
tronic recording of such meeting must also be made available to the
public except for those portions determined by a recorded vote to fall
within the exemptive provisions. Again, in order to avoid the disclo-
sure of such portions of the transcript of the second closed meeting, a
third meeting called to consider and vote on the proposed deletions
stemming from the second meeting must be closed, and the transcript
of that meeting must be examined at a. fourth closed meeting and so
on and on ad infinitum. Obviously, some rule of reason must prevail
in the implementation of such a provision, but the letter of the law, if
observed, would be paralytic in its effect.
We do not subscribe to the position that the transcript requirement
is essential to the enforceability of the act and we feel that. a reason-
able compromise can be worked out in this area. The discovery proce-
dures available to U.S. District Courts do not depend upon the avail-
ability of verbatim transcripts or electronic recordings of agency
meetings. While the concepts embodied in H.R. 11656 stem from "Sun-
shine" or "open meeting" statutes of the States, none of the 49 State
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statutes, so far as we can determine, has a verbatim transcript require-
ment for either open or closed meetings.
(2) The Definition of "Agency"
The definition of "agency" contained in H.R. 11656 is unclear and
would lead to unnecessary confusion and litigation.
The agencies to be covered can and should be specifically listed. A
successful precedent for this approach is the Government Corporation
Control Act of 1945, 31 USC 841 et seq. This Act has been amended
on several occasions to add or delete particular corporations. This pro-
cedure would be appropriate for H.R. 11656. Congress can, of course,
always amend the Act to add or delete agencies but would be required
to review the applicability of the Act on the infrequent occasions when
such an agency is created.
(3) The Definition of "Meeting"
Meetings covered by the bill should be those gatherings for the pur-
pose of conducting official agency business of at least the number of
individual agency members required to take final action on behalf of
the agency. The meeting definition in H.R. 11656 would apply even to
casual or social encounters which were not gatherings for the purpose
of acting in behalf of the agency.
(4) Identification of Persons Attending Closed Meetings-
The requirement of H.R. 11656 that an agency publicly list all
persons expected to attend a closed meeting and their affiliations would
permit inferences not in the public interest to be drawn from such
information. Particularly in adjudicatory proceedings falling under
one of the 10 exemptions from the open meetings requirement, pre-
mature disclosure of the names of individuals or organizations, con-
cerning or against whom official action may or may not be taken,
could lead to damaging speculation or premature public reaction that
could result in damage to individual rights, to financial markets or
to other interests that should legitimately be protected by government
regulators.
(5) Venue For Actions Brought Under the Legislation
tions brought under the legislation should
f
or ac
We feel that venue
be limited to the district in which the agency in question has its head-
quarters or where the meeting in question occurred. H.R. 11656 per-
mits such" actions to be brought also where the plaintiff resides or has
his principal place of business. This could lead to duplicative lawsuits
spread across the country covering the same agency meeting or
meetings.
of Individuals
l Liabilit
P
y
ersona
(6)
We question the provisions of H.R. 11656 imposing personal lia-
bility on individual agency members for attorney's fees and court
costs. The assessment of attorney fees and other litigation costs per-
sonally against individual members of an agency can only lead to a
further diminution of the rewards of public service. This provision
would not only discourage qualified persons from accepting agency
appointments, but would inhibit performance of official duties by those
in office.
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(7) Ex Parte Comanucj ieations
H.R. 11656 would place in the public record all documentation of
prohibited ex parte communications even those dealing with matters
which, if the subject of an agency meeting, would permit the closing
of such meeting, or, if the subject of a request for documents under
the Freedom of Information Act, would be exempt from disclosure
under one of the Act's exemptions. We fully support the prohibition
of ex parte contacts, but feel this provision could be abused to force
disclosure of otherwise exempt information.
CosT
It is not possible to estimate the the costs of complying with the
provisions of H.R. 11656. Certainly the time of a majority of the entire
membership of an agency spent in the repeated voting sessions at-
tendant upon closed meetings; the time spent by lawyers and other
staff members examining documents; litigation costs arising from
actions created by the bill; the administrative burden of preparing a
verbatim transcript of each closed meeting, of deleting exempt por-
tions and of providing a copy of the remainder to the public will be
significant.
SUMMARY
In summary, we support the purposes of II.R. 11656, but we feel
the bill should be improved to avoid disclosures not in the public in-
terest, invasions of privacy, excessive costs, and the disruptions and
delays of agency proceedings that are bound to result from the enact-
ment of H.R. 11656 in its present form.
We concur in the foregoing views :
FRANK HORTON.
JOHN N. ERLENBORN.
JOHN W. WYDLER.
CLARENCE J. BROWN.
SAM STEIGER.
GARRY BROWN.
EDWIN B. FORSYTHE.
WILLIs D. GRADISON, Jr.
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ADDITIONAL VIEWS OF HON. CLARENCE J. BROWN
I concur fully with the views expressed by my colleague, Congress-
man Horton.
While I strongly support the policy of open meetings as vital to
maintaining and enhancing the integrity of the governmental process,
I feel that H.R. 11656 fails to make what I believe is a necessary dis-
tinction between the rule-making (quasi-legislative) and the adjudi-
catory (quasi-judicial, quasi-administrative) functions of the agencies
covered by this legislation.
Meetings of an agency at which decisions of applicability to the
general public are made are quasi-legislative, and therefore should
most definitely be open to the public. On the other hand, those meetings
at which decisions are made that affect only the status of the parties
involved are quasi-adjudicatory in nature, and should in appropriate
cases be permitted to remain private until a final decision is reached
in order to protect to the fullest extent possible the rights of the indi-
viduals or parties involved.
It makes bad law for us not to draw these distinctions, and empha-
sizes the contradiction in current Congressional passions for the pub-
lic's right to know, and the individual's right to privacy. The schizoid
nature of Congressional attitude in these areas needs to be clarified.
Rather than clarifying, this legislation only serves to blur them
further.
CLARENCE J. BROWN.
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ADDITIONAL VIEWS OF HON. PAUL N. McCLOSKEY, JR.,
HON. JOHN N. ERLENBORN, HON. GARRY BROWN, HON.
CHARLES THONE, HON. EDWIN B. FORSYTHE, HON.
ROBERT W. KASTEN, JR., AND HON. WILLIS D. GRADI-
SON, JR.
This "Sunshine" bill has a laudable purpose. As written, however,
the bill imposes incredible new burdens on the day-to-day operations
of government.
H.R. 11656 received very little testimony before the House Subcom-
mittee on Government Information and Individual Rights (B. Abzug,
Chairperson), partly because it was originally taken almost verbatim
from S. 5, passed by the Senate by a, vote of 94 to 0.
Whenever the, Senate acts unanimously, it behooves us to examine
their work carefully to determine whether such unusual agreement
betokens careful craftsmanship or uncommon inattention. In this in-
stance, we believe the latter description applies.
A]1 of us desire that the affairs of government be, conducted as openly
as possible "in the sunshine," as it were.
Likewise, however, all of us have agreed of late that we should try
to cut the cost of government, and, in particular, that we should try
to cut the need for mountains of paperwork.
Similarly, we believe we are beginning to perceive a need to dis-
courage undue litigation in the court system. Our federal judges are
already underpaid and overworked.
Balancing these three goals, (1) open government (2) cutting costs
of government and (3) discouraging undue litigation, how does the
"Sunshine" bill, H.R. 11656, measure up?
First of all, it is a lawyer's dream. Imagine the right to bring a
lawsuit and be guaranteed attorney's fees and costs merely if you
"substantially prevail?" (Page. 12, line 20 et seq.)
Further, note that as a plaintiff, not, only can you obtain personal
costs against individual agency members in certain cases (pages 12--
13), but that costs cannot be assessed against you, even if you lose,
at least not unless you are found to have initiated the lawsuit "pri-
marily for frivolous or dilatory purposes" (page 13, lines 2-4). Fur-
ther, note with pleasure that the burden of proof is always on the
government !
Finally, note that one can bring such a lawsuit, against any agency
covered in the Act in the plaintiff's own home district, regardless of
where the meeting is held. (Page 11, lines 16-18.)
What a, bonanza for the legal profession?
Assume, for example, that the SEC wishes to hold a closed meeting
in Wnshinaton on the question of whether to order a cessation in
trading of Lockheed shares on the stock market.
Any shareholder or citizen residing in any one of the 50 states could
bring a lawsuit in his home district to contest the closing of the meet-
ing. The SEC would he required to answer an ordinary complaint in
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20 days, or within 40 days if it could show good cause, but this is a
simple responsibility compared to the SEC's problem if a few Lock-
heed shareholders in different states should elect to sue to enjoin the
SEC from closing its meeting.
Consider the legal cost to a Washington-based agency in defending
against a temporary restraining order, in Alaska on Friday, Hawaii
on Monday and Idaho on Tuesday !
The, legal burden imposed on a single agency by the unique com-
bination of legal rights and duties contained in H.R. 11656 could
constitute an unconscionable burden on the public treasury, as well as
practically paralyze the Justice Department and the legal staff of the
agency involved.
At least 38 agencies are covered by this bill, and each one of them is
subject to an easily-brought lawsuit every time a meeting is closed
under one of ten permitted exemptions.
Also, the exemptions are by no means clear cut. Take exemption (6)
for example (page 4, lines 1-3), permitting closure when a meeting is
likely to : "disclose information of a personal nature were disclosure
would constitute a clearly unwarranted invasion of personal privacy."
This kind of language permits a bona fide. court test of almost any
privacy contention an agency might determine as the basis for closing
a meeting.
Do we really want to subject all agencies of the federal government
"headed by a collegial body composed of two or more individual mem-
bers, a majority of whom are appointed to such position by the Presi-
dent" (page 2, lines 10-14), to such risk of litigation?,
It is true that a majority of the Members of the House are lawyers.
It is likewise true that many of us anticipate returning to the practice
of law at some future date. (Some of us sooner than others if the im-
pact and costs of this bill are ever understood by the organized Bar and
the public.) But do we really need to create such a new and profitable
field of employment for our own profession?
We have to confess to a certain feeling of inadequacy at having
failed initially to perceive the serious problems with the bill, or to
persuade our colleagues on the Government Operations Committee of
the need for its substantial amendment.
We have not mentioned in these views the cumbersome nature of the
notice. and verbatim transcript provisions of the bill mentioned in the
views of our colleague, Frank Horton, but their possible costs could
also be monumental. In our haste to pass the bill, we think the least
the Committee could have done was to wait for testimony by the Ad-
ministration on its potential budgetary impact.
Unfortunately, the Committee received no testimony whatsoever on
the magnitude of potential costs, either legal or administrative.
Upon reflection, it seems to us that the cumulative effects of the
pernicious provisions of H.R. 11656 outweigh the. bill's usefulness. Un-
less the Horton substitute can be adopted, we are impelled to conclude
that the bill should be recommitted for more careful draftsmanship.
PAUL N. MCCLOSKEY, Jr.,
JOHN N. ERLENBORN,
GARRY BROWN,
CHARLES TII0NE,
EDWIN B. FORSYTHE,
ROBERT W. KASTEN. Jr.,
WiLLIs D. GRADISON, Jr.
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