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The original documents are located in Box 55, folder "9/13/76 S5 Government in the
Sunshine Act (2)" of the White House Records Office: Legislation Case Files at the Gerald
R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Exact duplicates within this folder were not digitized.
Digitized from the White House Records office: Legislation Case Files at the Gerald R. Ford Presidential Library
Calendar No. 343
94TH CONGRESS
1st Session
}
{
REPORT
SENATE
No. 94-354
GOVERNMENT IN THE SUNSHINE ACT
REPORT
OF THE
COMMITTEE ON GOVERNMENT OPERATIONS
UNITED STATES SENATE
TO ACCOMPANY
S. 5
TO PROVIDE THAT MEETINGS OF GOVERNMENT AGENCIES
AND OF CONGRESSIONAL COMMITTEES SHALL BE OPEN
TO THE PUBLIC, AND FOR OTHER PURPOSES
JULY 31, 1975.-Ordered to be printed
U.S. GOVERNMENT PRINTING OFFICE
57-010
WASHINGTON : 1975
COMMITTEE ON GOVERNMENT OPERATIONS
ABRAHAM RIBICOFF, Connecticut, Chairman
JOHN L. McCLELLAN, Arkansas
CHARLES H. PERCY, Illinois
HENRY M. JACKSON, Washington
JACOB K. JAVITS, New York
EDMUND S. MUSKIE, Maine
WILLIAM V. ROTH, JR., Delaware
LEE METCALF, Montana
BILL BROCK, Tennessee
JAMES B. ALLEN, Alabama
LOWELL P. WEICKER, JR., Connecticut
LAWTON CHILES, Florida
SAM NUNN, Georgia
JOHN GLENN, Ohio
RICHARD A. WEGMAN, Chief Counsel and Staff Director
PAUL HOFF, Counsel
PAUL L. LEVENTHAL, Counsel
ELI E. NOBLEMAN, Counsel
MATTHEW SCHNEIDER, Counsel
JOHN B. CHILDERS, Chief Counsel to the Minority
BRIAN CONBOY, Special Counsel to the Minority
STEVEN HOROWITZ, Staff Assistant
MARILYN A. HARRIS, Chief Clerk
ELIZABETH A. PREAST, Assistant Chief Clerk
HAROLD C. ANDERSON, Staff Editor
(II)
CONTENTS
Page
Summary of Legislation
1
Open Congressional Meetings
2
Open Agency Meetings
2
Ex Parte Contacts
3
Background and Purpose of the Legislation
4
History of Legislation
9
Section-by-Section Analysis
11
Introductory Sections
11
Title I-Congressional Procedures
11
Section 101-Senate Committees
11
Section 102-House Committees
13
Section 103-Conference Committees
14
Section 104-Joint Committees
14
Section 105-Exercise of Rulemaking Powers
14
Title II-Agency Procedures
15
Section 201-Open Meetings
15
Agencies included
15
Definition of meeting
18
Effect of subsection 201 (a)
19
Section 202-Prohibition of Ex Parte Communications
35
Section 203-Effect on Other Laws
39
Section 204-Effective Date
40
Estimated Cost of Legislation
40
Role Call Vote in Committee
41
Changes in Existing Law
41
Legislative Reorganization Act of 1946 as amended through March 7,
1975
41
Title I-Changes in Rules of Senate and House
42
Chapter 5, Title 5, U.S. Code
44
Rules of the House of Representatives
46
Appendix
49
Summary of State Open Meetings Laws
50
Text of S. 5 as reported
53
(III)
Calendar No. 343
94TH CONGRESS
SENATE
REPORT
1st Session
No. 94-354
GOVERNMENT IN THE SUNSHINE ACT
JULY 31, 1975.-Ordered to be printed
Mr. CHILES, from the Committee on Government
Operations, submitted the following
REPORT
[To accompany S. 5]
The Committee on Government Operations, to which was referred
the bill (S. 5) to provide that meetings of Government agencies and
of congressional committees shall be open to the public, and for other
purposes, having considered the same, reports favorably thereon with
an amendment and recommends that the bill as amended do pass.
SUMMARY OF THE LEGISLATION
S. 5, the "Government in the Sunshine Act," is founded on the
proposition that the government should conduct the public's business
in public. The bill requires congressional committees and all Federal
agencies subject to the legislation to conduct their meetings in the
open, rather than behind closed doors. As a result of this legislation,
the public will, for the first time, have the right to observe most of the
meetings held by all congressional committees, and by 47 Federal
agencies.
The bill also establishes for the first time a clear, statutory prohibi-
tion against private ex parte communications between agencies and
outside parties on matters being adjudicated by the agency. This
provision assures that decisions required by law to be made solely on
the basis of a public record will not be influenced by secret discussions
that some of the parties to the proceeding, or the public, do not know
about.
The bill will help increase the public's faith in the integrity of
government, enable the public to better understand the decisions
reached by the Government, and better acquaint the public with the
process by which agency decisions are reached.
S. 5 in no way changes the substantive laws governing Congress or
any agency. It in no way increases the right of the public to actively
(1)
2
participate in any meeting. What it does do is end the secrecy in which
many Government decisions are now made.
OPEN CONGRESSIONAL MEETINGS
Title I amends the rules of the House and Senate governing com-
mittee meetings, except hearings, by requiring such meetings to be
open except in certain specified circumstances.
Sections 101 and 102 require the Senate and the House to hold mark-
ups and other committee meetings, other than hearings, in public unless
the committee or subcommittee votes to close the meeting on one of
five specific grounds. These exceptions cover such matters as national
defense and foreign policy, personnel matters, criminal or civil investi-
gations, personal privacy, and trade secrets. The meeting may be
closed only if a quorum of the committee votes to close the meeting.
Section 104 imposes the same requirements on the meetings of joint
committees. Presently. the Senate rules provide that mark-ups and
other voting sessions of most committees are closed, unless the commit-
tee votes to open them in specific instances, or unless the committee
votes to adopt on its own a general, open meeting rule. In the House,
such meetings are open unless the committee votes to close them, but
the applicable rule does not limit the reasons which a committee may
invoke to close the meeting.
Title I does not affect the rules now governing committee hear-
ings because the law already requires them to be open unless commit-
tees close them on one or more specified grounds.
Section 103 requires that all meetings of conference committees be
open unless either the House or Senate managers determine by a
majority vote that the meeting should be closed. The bill does not
specify the grounds that may justify closing the meeting of a confer-
ence committee. Presently there are no rules governing open con-
ference committees. The House has already passed a rule identical to
section 103, but its implementation is contingent upon the Senate
passing the same rule.
Section 105 explicitly states that title I is enacted pursuant to the
rulemaking authority of both Houses. It recognizes the right of either
House to alter the rules as they apply to such House, or to enact other
rules.
OPEN AGENCY MEETINGS
Section 201 applies to the Federal Election Commission and the 46
other Federal agencies headed by two or more Commissioners or simi-
lar officers appointed by the President with the advice and consent
of the Senate. The bill requires meetings between heads of such agenc-
ies to be open to the public. A list of the agencies covered by this section
is included in the section-by-section analysis of subsection 201 (a).
Section 201 (a) establishes the basic principle that all meetings be-
tween the heads of these collegial agencies must be open to the public.
The term "meeting" is defined to include agency deliberations where at
least a quorum of the agency's members meet to conduct or dispose of
official agency business. Chance encounters which do not involve sub-
stantive discussions, and social events at which business is not dis-
cussed, would not be covered by the section. Nor does the bill cover
3
discussions between less than a quorum of the Commission, or discus-
sions between a Commissioner and any number of staff employees.
Subsection (b) provides that meetings can be closed by the agency
only by a majority vote of all agency members. As in the case of com-
mittee meetings, the bill requires that a meeting may be closed only
on one of ten specified grounds. These grounds are based in most
respects on the exceptions contained in the Freedom of Information
Act. At the same time, an agency may decide that it would, on balance,
be in the public interest to conduct in the open even those meetings
which fall under one of the exceptions. Closed meetings are never
mandated.
To insure that the public knows about agency meetings, and has
a chance to attend, the bill requires advance notice of each meeting
and its subject matter. If any agency closes any meeting it must an-
nounce its decision ahead of time, along with an explanation of its
action, and make a verbatim record of the meeting. After the meet-
ing, it must release to the public every major portion of the meeting
that did not in fact involve sensitive matters. The bill also provides
that if an agency must close a majority of its meetings because its dis-
cussions involve certain specified types of sensitive information, the
agency may follow expedited procedures when announcing the meet-
ing, or deciding to close it to the public.
The remaining provisions in section 201 establish procedures for
enforcing the section's open meeting provisions in court.
EX PARTE CONTACTS
Section 202 establishes an across-the-board statutory prohibition of
ex parte contacts between agency decisionmakers and all persons out-
side the agency where the purpose of the contact is to discuss the merits
of any matter being formally adjudicated by the agency. The new rule
will prevent secret communications between the agency and an out-
side person interested in the outcome of a proceeding. The section, ap-
plicable to all agencies in the executive branch, whether or not they
are multiheaded, replaces the very limited provisions in the Adminis-
trative Procedure Act now governing ex parte communications.
Section 202 applies to formal agency adjudications and rulemaking
proceedings which are adjudicative in nature (so-called formal "on-
the-record" rulemaking). In such cases all communications between
agency officials and any outside person must either be on the public
record, or have been preceded by reasonable notice to all parties. When-
ever any communication occurs in violation of this section, the mate-
rial submitted, or a record of the oral conversation held, must be placed
in the public record of the proceeding. Whenever any person know-
ingly engages in such illegal communications with agency officials
about a pending case, the agency may, in its discretion, take action
on the merits against such party. This last provision reflects case law
approving similar remedial action which agencies have taken on their
own. See, e.g., Jacksonville Broadcasting Corporation V. FCC, 348
F. 2d 75 (1965).
Section 202 strengthens ex parte provisions now in the Administra-
tive Procedure Act in a number of ways. It extends the persons gov-
erned by it to include all those agency employees involved in the de-
4
cisionmaking process, including commissioners. Currently only
hearings examiners are covered. It broadens the type of agency pro-
ceedings covered SO as to include not only formal adjudications, but
also formal rulemaking proceedings governed by the same rules as
formal adjudications. It specifies that the prohibition against ex parte
communications shall start at an early point in the proceedings. It
applies to all communications "relevant to the merits of the proceed-
ings." It precisely spells out for the first time the corrective steps that
an agency official must take if an ex parte communication does take
place. And it specifically provides for sanctions that an agency may
impose against any person violating the rules on ex parte communica-
tions.
BACKGROUND AND PURPOSE OF THE LEGISLATION
This bill represents the logical extension of legislation passed by
Congress over the last decade designed to open the government's deci-
sionmaking process to the public.
In 1955 the House of Representatives created a Special Subcom-
mittee on Government Information chaired by Rep. John E. Moss
(D.-Calif.). The investigative and legislative hearings held by that
panel contributed significantly to the creation and enactment in 1966
of the Freedom of Information Act, 5 U.S.C. 552. In 1972, while
major oversight hearings were underway regarding the administration
and operation of the Freedom of Information Act, in particular, and
government information policy in general, another attempt to open
the people's business to public view culminated in the enactment of
the Federal Advisory Committee Act, 5 U.S.C. App. I. In addition
to its other provisions, this statute establishes the presumption that the
meetings of advisory committees and study panels should be open to
the public.
In 1974 the Congress enacted new legislation amending and strength-
ening the public's right to gain access under the Freedom of Informa-
tion Act to information in the government's possession.
This bill is fully in accord with the principles and aims of the pre-
vious legislation.
One important effect of the bill will be to increase the public's con-
fidence in government. Mr. Lou Harris, a leading pollster, summed up
the current public mood during committee hearings on the Govern-
ment in the Sunshine legislation as follows:
At this point in our history, the people are roundly fed up
with what they feel is incompetence, inefficiency, corruption,
lack of real public interest, and just plain lack of decency in
the governing circle of this country. I do not say that idly,
Mr. Chairman. Most of all, people are firmly wedded to the
notion that if the Federal Government were opened up, rather
than gross inefficiencies and lack of candor resulting, to the
contrary, an opening of the Federal decisionmaking process
would indeed lead to wiser, sounder, more creative and better
decisions. (Hearings on S. 260, 1974, p. 163.)
The committee is confident that the public will be favorably im-
pressed by the integrity, competence, and dedication of the great
majority of agency heads. Open meetings will thus help increase the
5
public's confidence in government by permitting the public to observe
firsthand the responsible way agency heads carry out their duties.
On the other hand, where the government is not functioning as well
as it could public exposure should help insure that the quality of work
remains at the highest possible level. The committee believes that it
would be far less damaging to government if the facts, regardless of
their nature, were disclosed openly to the public and the press, rather
than emerging only indirectly through speculation or scandal.
Press speculation or partial leaks of information are often more
damaging than the actual facts. (See, e.g., Hearings on S. 260, 1974,
pp. 16, 217, 295.) Where the press must rely on leaks for its informa-
tion there will inevitably be inaccuracies as well as partisan or self-
serving statements.
As John Gardner, Chairman of Common Cause, said when testify-
ing in strong support of S. 5:
Secrecy is fatal to accountability. Citizens cannot hold gov-
ernment officials accountable-if they do not know what gov-
ernment officials are doing. All of the great instruments of
accountability that the citizen must depend on-Congress, the
courts, the electoral process, the press-may be rendered im-
potent if the information crucial to their functions is with-
held. (Hearings on S. 260, 1974, p. 51.)
The public is naturally more distrustful of government conducted in
secret. This suspicion arises in large part from the fact that meetings
are closed, not from any specific evidence that improper or illegal ac-
tivities are taking place behind closed doors. Regardless of what the
public actually learns about the government, the fact that this bill
opens meetings formerly closed should in itself remove an important
source of any distrust the public may have of government.
In addition, this bill should enhance greatly the public's under-
standing of the decisions reached by the government. The Freedom of
Information Act enables the public to review many of the domuments
on which government decisions are based. These represent a record of
what has already transpired. Yet up to now the public has not had a
full opportunity to learn how or why government official make the
important policy decisions which they do. All too often the meetings
at which such decisions are made are closed to the public. Interested
persons must content themselves with elementary minutes, or back-
ground papers tangentially related to the official agenda. Formal state-
ments in support of agency actions are frequently too brief, or too gen-
eral, to fully explain the Commission's reasoning, or the compromises
that were made. As a result, the public may not understand the reasons
an agency has acted in a certain way, or even what exactly it has de-
cided to do. By requiring important decisions to be made openly, this
bill will create better public understanding of agency decisions.
The committee believes that this openness will significantly increase
cooperation between the public and government agencies. It will en-
hance the public's comprehension of the difficult choices agencies must
often make. and provide a greater appreciation of the problems they
face. Moreover, openness will better demonstrate what facts and policy
considerations the agency found important in reaching its decision, and
what alternatives it considered and rejected. As citizens listen to debate
S. Rept. 94-354-2
6
between the heads of an agency, they will be able to identify precisely
the issues that are of most concern to the agency.
Greater public understanding of the exact nature and reason for
agency decisions should also promote greater compliance. Members of
the public directly affected by an agency's action will no longer have
to guess what exactly is expected of them as a result of a particular
decision. They will know not only what the agency decided, but the
purpose and intent of the agency's actions.
Finally, as all elements of the public gain an equal opportunity to
learn about the issues and problems confronting agencies, wider and
more informed public debate of the agency's policies becomes possible.
Increased public interest and discussion cannot help but contribute to
improve decisionmaking process.
One of the leading scholars on administrative law, Professor Ken-
neth Culp Davis of the University of Chicago Law School, summa-
rized his strong support of the Government in the Sunshine legislation
as follows:
Open meetings would at first cause consternation and
opposition. But gradually open meetings would be accepted.
Making more of the realities known to the public would
facilitate criticism, and the principal result would be to
improve the quality of what is done. Furthermore, the demo-
cratic influence would be stronger. The relation between agen-
cies on one side and media and pressure groups of the other
side would be improved, because misunderstanding resulting
from partial information, as distinguished from full infor-
mation, would be reduced. (See Government in the Sunshine:
Responses to Subcommittee Questionnaire, Government Op-
erations Committee Print, 1973, p. 67.)
The success Congress and the committee have recently had in open-
ing its activities to the public confirms the effectiveness and practical-
ity of S. 5.
In the first year after the House in 1973 adopted a rule requiring
committees to hold their bill-drafting meetings in public, unless the
committee voted to close the meeting, 80 percent of all mark-ups were
open to the public. Previously, every committee but one conducted its
mark-ups in private (Hearings on S. 260, 1974, p. 47). In 1974, the
number of open committee mark-ups in the House increased to 88 per-
cent. In 1975 the House confirmed the success of such open government
legislation by re-enacting its rule on open committee meetings. At the
same time it strengthened one of its provisions.
This committee believes that its own experience with open mark-ups
has clearly been a success. Since the committee adopted a rule re-
quiring open mark-ups, it has not voted to close a single one. Conduct-
ing mark-ups in public has not interfered with the orderly and effi-
cient conduct of business.
The Senate Committee on Banking, Housing and Urban Affairs. and
the Committee on Interior and Insular Affairs have had similar rules
since 1973. These committees also conclude without hesitation that the
open-meeting rule has neither interfered with their work, nor in-
hibited free and open discussions. (Hearings, pp. 92-94, p. 104.)
7
Over the last 2 years the Government Operations Committee, the
Banking, Housing, and Urban Affairs Committee, and the Interior
Committee have dealt effectively in open sessions with such
important and often controversial legislation as the Congressional
Budget and Impoundment Control Act of 1973, the Energy Reorga-
nization Act of 1973, the Housing and Community Development Act
of 1974, the Export-Import Bank, and legislation concerning energy
allocation, land use policy, consumer protection, and surface mining
and mineral leasing.
Open meeting laws are also a widely accepted and successful part
of State law. Forty-nine States now have open meetings laws, and
thirty-five States have constitutional provisions relating to open
government.
State laws on open government have developed largely since 1950,
when only one law was in effect. In the last few years especially, such
legislation has gained wide acceptance at the State level. Nine new
laws were passed during 1972-73. In 1974, ten States strengthened ex-
isting legislation. Moreover, no open meeting law has been repealed
except to be strengthened. Several States have also recently amended
their constitutions to add more comprehensive provisions on open
government.
Forty-nine States open state-level agencies. Forty-four States
provide for open meetings of county and city level nonlegislative agen-
cies, as well as city councils and county boards. Currently, State
legislatures in 35 States open committee deliberations to the public. In
contrast, only 17 States opened committee meetings to the public as a
matter of course in 1972. The appendix to this report contains a sum-
mary of the open meeting laws in all 50 States.
The State of Florida has the most comprehensive open meetings
law in the country. The Florida law opens to the public all discussions
and deliberations of government where "official acts are to be taken."
Since its passage in 1967, Florida's "Sunshine Law" has been well re-
ceived by the judiciary. The courts have neither significantly limited
the broad scope of the law, nor riddled it with exceptions. Indeed, the
judicial acceptance of this strong open government law has fostered the
development of similar laws in other States.
Governor Reubin Askew of Florida, testifying on the Florida law
before the committee, stated that "
Predictions
that
too
much
sun-
shine would lead to unnecessary embarrassment of public employees,
costlier land acquisitions, and other problems have not been borne out
by the Florida experience." A major study of the Florida law by the
Center for Governmental Responsibility polled city councilmen across
the State and found that 77 percent favored the law, though several
exemptions, similar to those in S.5, were proposed.
The committee received views in support of open meeting laws from
the Attorney General's Office in a number of other States as well. The
Attorney General of California told the committee that open meet-
ing requirements have generally had a "salubrious effect" in that State.
The Attorney General of Washington believes the law in that State
"has been beneficial to the citizens" of the State and "has led to increas-
ing awareness by those deliberative bodies affected by it for the need
to adequately prepare themselves for meetings." The Attorney General
8
of North Carolina concludes that the State's open meetings bill "has
substantially improved the governmental process," and that it has
"helped increase public confidence in government."
The all but universal trend at the State level in favor of Government
in the Sunshine legislation is clear evidence that such legislation is
both practical and beneficial. Such widespread adoption of the legisla-
tion would not have occurred had the States found them unsuccessful
or unworkable. One recent commentary on such State laws in fact
concluded that "contemporary arguments by commentators in opposi-
tion to such laws are virtually nonexistent." (45 Mississippi Law
Journal 1151, 1162.)
In short, this committee is convinced that past experience with open
meeting legislation constitutes strong grounds for believing that the
Federal Government will benefit significantly from general legisla-
tion requiring meetings in both the executive and legislative branches
to be open.
Section 202, prohibiting ex parte contacts, answers a similar need to
insure openness in the way the Government decides formal adjudi-
cation and rulemaking proceedings.
Ex parte contacts made secretly between one party to the proceed-
ing and an agency official prevent other interested parties from count-
ering the arguments presented. It may also make it impossible for the
public to understand why an agency decided the case as it did. Such
contacts make it difficult for Congress to exercise effective over-
sight of the practices and policies of regulatory agencies. In short, ex
parte contacts are totally inconsistent with the principle of open
government.
Although the undesirability of ex parte contacts has long been
recognized, the Administrative Procedure Act contains no general
provision specifically prohibiting them. Section 202 amends the Ad-
ministrative Procedure Act to clarify and reemphasive the extreme
seriousness with which ex parte contacts should be viewed. It pro-
vides clear notice to all concerned that ex parte contacts are not only
illegal, but may actually result in the agency finding on the merits
against a party who knowingly violates the provision.
The need for regulation of ex parte contacts in adjudicative pro-
ceedings was first dramatized by the exposure of improper influence in
the granting of broadcast licenses by Federal agencies in the 1950's.
The 1961-62 Administrative Conference attempted to deal with the
problem by recommending that each agency promulgate a code of
behavior governing ex parte contacts. While a number of the agencies
did formulate such rules, they vary greatly in the types of contacts
covered. Furthermore, rules adopted by an agency may be modified
or repealed by the same agency at any time. Such rules lack the au-
thority and permanence of a general statutory prohibition of ex parte
contacts.
In 1963 Administrative Law Section of the American Bar Associa-
tion undertook a study of the Administrative Procedure Act, including
a review of its ex parte provisions. In 1970 the House of Delegates of
the American Bar Association endorsed enactment of a broad rule
prohibiting ex parte contacts. Between 1970 and 1974 an Association
committee drafted language implementing this resolution. Section
9
202 of the bill follows closely the wording developed by the American
Bar Association.
In 1884 Woodrow Wilson stated:
Light is the only thing that can sweeten our political
atmosphere-light thrown upon every detail of administra-
tion in the departments-light blazed full upon every feature
of legislation-light that can penetrate every recess or corner
in which any intrigue might hide; light that will open to view
the innermost chambers of Government.
The committee fully agrees.
HISTORY OF LEGISLATION
The legislation was initially introduced as S. 3881 on August 9,
1972, by Senator Lawton Chiles.
While there was informal consideration of the bill during the 92d
Congress, no legislative action was taken. As a consequence of these
discussions, a more developed and comprehensive proposal was drafted
and offered by Senator Chiles in the 93d Congress. Introduced on
January 9, 1973, with several cosponsors, the measure (S. 260) con-
tained two titles, one pertaining to congressional committee proceed-
ings and one governing executive branch agency meetings. A new
section regarding ex parte communications was added to the latter
title.
In the summer of 1973, the Subcommittee on Reorganization, Re-
search, and International Organizations, chaired by Senator Ribi-
coff, solicited the views of public administration experts, legal scholars,
representatives of the media, and professional organizations. (See
Government in the Sunshine: Responses to Subcommittee Question-
naire, Senate Government Operations Committee Print 1973). An
overwhelming majority of the responses to the questionnaire strongly
supported Government in the Sunshine legislation.
Two days of hearings on S. 260 were held by the subcommittee on
May 21 and 22, 1974, under the direction of Senator Chiles. An addi-
tional day of hearings was held on October 15.
The bill was reintroduced by Senator Chiles as S. 5 on January 15,
1975.
On May 12, the Subcommittee on Federal Spending Practices, Effi-
ciency, and Open Government, meeting in open session, unanimously
adopted an amended version of S. 5. The full committee met in open
session on June 18 and July 9, and the bill, as further amended, was
ordered reported by the full committee on July 9th by a unanimous
vote.
In preparing this legislation the committee has consulted with a
large number of legal experts both within the government and the
private sector. It received comments on the legislation from 43 agencies
of the government.
During its consideration of S. 5 the committee made a large number
of amendments to the bill in response to suggestions by members of
Federal agencies, Congress and the public. These amendments further
insure that the Government will be able to open their activities to the
10
public without imposing unnecessary procedural burdens on the Gov-
ernment, or interfering with the Government's effectiveness. The fol-
lowing is a summary of some of the more important amendments
adopted by the committee.
Sections 101 through 103 have been revised to conform in most re-
spects to S. Res. 9 and S. Res. 12 and the provision in the Congressional
Budget Act of 1974, Public Law 93-344, enacted by Congress in 1974.
A number of the procedural requirements contained in the original bill
were eliminated.
Section 201 was amended in a number of ways. The scope of section
201 (a) was limited SO that is applies only to those multiheaded agencies
headed by Officials appointed by the President with the advice and
consent of the Senate. The definition of "meeting" was redrafted to
exclude many discussions which are informal in nature. Subsection (b)
was amended to provide agencies with additional flexibility to close
meetings where necessary. A number of paragraphs were added spec-
ifying additional grounds justifying a closed meeting, and the scope
of other paragraphs, such as the one governing adjudication, was
broadened. Another amendment provides that an agency may withhold
information about a meeting for the same reasons that may require
the agency to close the meeting in the first place. Other wording added
to subsection (b) clarifies the right of an agency to close a meeting
where it determines that the meeting can be reasonably expected to
involve sensitive matters. Absolute certainty is not required on the
part of the agency. The section is not intended to require such a
showing of certainty in any judicial proceeding invoking this section.
Amendments to subsection (c), (d) and (e) relieve agencies of a
number of the procedural requirements contained in the original bill.
One amendment to subsection (c) authorizes agencies in certain cases
to issue general regulations specifying in advance the meetings that
must be closed. Another amendment gives agencies the right to change
on short notice the agenda of their meetings, or to revise their prior
decisions to open or close meetings. The public announcement an
agency must make of its meetings was expanded to include notice in
the Federal Register either before or after the meetings is held.
Instead of requiring an agency to maintain a transcript or elec-
tronic recording of all its meetings, subsection (e) was amended to
require a verbatim record of only those meetings closed to the public.
Meetings discussing cases in adjudication were exempted from the
requirement of a verbatim record in all cases. Other changes provide
that agencies will not have to edit the transcripts in great detail, nor
provide written explanations of any deletions it makes in the tran-
scripts released to the public.
Other amendments to section 201 prevent district courts from over-
turning agency action taken at a meeting improperly closed to the pub-
lic, and strictly limit the ability of a court to assess the costs of
litigation against an individual agency member.
The wording in section 202 governing ex parte contacts was changed
in several ways. One amendment limits the authority of an agency to
rule on the merits against a party committing an ex parte violation.
As now worded, an agency may rule against such a party only where
the violation was knowing. Similarly, wording was added making a
11
communication by one person, on behalf of another, ex parte only
where it was done with the knowledge of the other person. Another
amendment deletes a provision in the original bill that exempted ex
parte communications from certain types of persons who were neither
parties, intervenors, nor Government officials. The provision granting
the district court jurisdiction to enforce the requirements of the section
was deleted.
Finally, provisions were added to section 203 clarifying the relation-
ship between this bill and the Freedom of Information Act and the
Privacy Act.
SECTION-BY-SECTION ANALYSIS
INTRODUCTORY SECTIONS
Section 1. This section states that the bill may be cited as the
"Government in the Sunshine Act."
Section 2. This section establishes as the policy of the United States
the principle that the public should have the fullest practicable
knowledge about the decisionmaking process of the Government. It is
the purpose of the bill to implement this policy without infringing
upon the rights of individual citizens and the ability of the Govern-
ment to carry out its responsibilities. The provision thus reaffirms the
principle that openness is desirable in a democratic Government. It is
the intent of this bill that governmental bodies conduct their delibera-
tions in public to the greatest extent possible. At the same time, the
section explicitly recognizes that the bill must also protect the ability
of the Government to carry out its responsibilities, and protect the
rights of individuals, such as the right of privacy, or the right to a
fair and impartial trial. The bill's provisions have been drafted in full
recognition of the fact that Government, if it is truly to serve the
public, must not only be open, but also effective and fair.
Section 3. This section defines "person" in the same way as the
Administrative Procedure Act, and should be interpreted in the same
way as that act. The definition includes an individual, but excludes
an agency.
TITLE I-CONGRESSIONAL PROCEDURES
SECTION 101-SENATE COMMITTEES
Section 101 (a). Paragraph (1) strikes the portion of section 133 (b)
of the Legislative Reorganization Act now governing executive ses-
sions of Senate committees. The present rule provides that markups
and other voting sessions of the committee will be closed unless the
committee votes to open them in specific instances, or unless the com-
mittee votes to adopt on its own a general open meeting rule.
Paragraph (2) amends the Legislative Reorganization Act to
provide new rules governing all meetings of a Senate committee or
subcommittee discussing committee business, with the exception of
hearings. The section establishes a presumption in favor of openness
of all Senate committee meetings in accordance with the general policy
of the bill. Openness should be the rule and secrecy the exception. The
new rule requires that all committee meetings, other than hearings,
shall be open unless a majority of the members of the committee or
12
subcommittee present decide by record vote to close the meeting, or
a portion of the meeting, on one of five specified grounds.
These five grounds are designed to cover those instances when
it may be necessary for a committee to meet in closed session.
Even if a matter does come within one of these five provisions, the
committee must decide in each particular case whether the need for
secrecy outweighs the general need for openness in Government. Since
this judgment must be made in each case, with full recognition of all
the facts, the rule requires the committee to vote on each meeting sepa-
rately. The committee may not adopt general rules closing certain
types of meetings. If a committee discussion of a particular matter is
extended over several days, the committee should vote at the beginning
of each day's meeting whether to close the meeting. Where only a por-
tion of a committee meeting needs to be closed to the public, the com-
mittee should arrange for the remainder to be open.
The five grounds which a committee may invoke to close a meeting
are listed, in clauses (1) through (5) of the new rule.
Section 101 (a) (1) exempts matters necessary to be kept secret in the
interests of national defense or the foreign policy of the United States.
This exemption is similar to that in the Freedom of Information
Act, as amended (5 U.S.C. 552 (b) (1)). The meaning that the terms
"national defense" and "foreign policy" have under that act should
provide guidance to Congress in implementing this provision. How-
ever, since the section applies to the Congress, not the executive branch,
the exemption does not expressly rely on the status any material may
have under executive branch rules of classification.
Section 101 (a) (2) exempts matters relating solely to committee staff
personnel or internal staff management or procedure. The provision
recognizes that discussions involving such matters as the hiring of a
particular individual to serve on the staff of the committee should be
be closed SO as to enable a candid discussion of the individual's
qualifications.
Section 101 (a) (3) exempts matters which will tend to charge an
individual with crime or misconduct; injure the professional reputa-
tion of any individual, or expose any individual to public contempt or
obloquy; or represent a clearly unwarranted invasion of an individ-
ual's privacy.
Any committee must be aware of the effect publicity arising from
one of its meetings may have on an individual's reputation. Special
care must be taken not to unfairly injure an individual's reputation
by unconfirmed or misleading statements. However, the language of
the exemption should not be read as justifying the closing of every
committee meeting that may in some way affect an individual's reputa-
tion. Such restrictiveness would not be in accord with the intent of
either the bill or this clause. In each case, the committee will have to
balance the possible harm to the individual against the need for open-
ness in Government. The possibility that one member of the committee
might make a casual remark concerning some individual might not
constitute grounds for closing a meeting, whereas formal consideration
of committee action in some way censuring an individual might justify
closing the meeting.
In deciding whether to close a particular meeting, different stand-
ards should apply to private individuals and public officials. The pub-
lic has a right to know fully about the actions of Government officials
13
in their public capacity. What is considered an invasion of privacy of
a private citizen may be justified when the official conduct of a public
employee is involved.
Section 101 (a) (4) exempts discussions that would disclose the
identity of an informer or law enforcement agent, or that would dis-
close information relating to the investigation or prosecution of any
civil or criminal violation of law that must be kept confidential in the
interests of effective law enforcement.
It is expected that this provision will be applicable primarily to
meetings concerning such aspects of a committee investigation as the
issuance of a subpena. Premature disclosure of the committee's deci-
sion to issue the subpena could destroy its effectiveness.
Section 101 (a) (5) exempts matters disclosing trade secrets or com-
mercial or financial information where such matter is required to be
kept secret by a statute, or where the information was obtained on
a confidential basis and disclosure would cause undue injury to a per-
son's competitive position.
Trade secrets and commercial or financial information must meet
the same tests under this exemption. The information can not be gen-
erally applicable to an industry, but must "pertain specifically to a
given person." The information discussed at the meeting must di-
rectly involve such sensitive matters, not merely be peripherally re-
lated to them.
The criteria established in clause 5 (A) is applicable only to stat-
utes which specifically requiring trade secrets or commercial or finan-
cial information to be kept confidential. General statutes which permit
government officials to withhold information in the public interest do
not meet this test. For example, it does not include the general type of
statute involved in Administrator, FAA V. Robertson, 95 S. Ct. 2140
(1975).
Clause 5 (B) establishes an alternative basis for closing meetings
under this provision. Two criteria must be met. First, the government
must have obtained the information under a pledge of confidentiality.
Secondly, the information must be kept confidential in order to pre-
vent undue injury to the competitive position of the person to whom
the information specifically relates. In deciding whether the competi-
tive injury would be "undue," the committee will have to balance the
legitimate public interest in attending the meeting against the degree
to which disclosure would substantially and unfairly injure a person's
business interests.
Section 101 (b). This subsection is a conforming amendment repeal-
ing the present provision in the Standing Rules of the Senate govern-
ing the meetings, other than hearings, of all standing committees.
Section 101 (c). This subsection amends the table of contents of the
Legislative Reorganization Act of 1946 to include a reference to the
new provision governing Senate committees enacted by section 101 (a)
of the bill.
SECTION 102-HOUSE COMMITTEES
This section amends the rules of the House of Representatives now
governing all meetings, other than hearings, by adopting exactly the
same rules as section 101 (a) adopts for the Senate. The present rules
of the House provide that all such meetings, except those involving
internal committee budgets or personnel matters, will be open unless
S. Rept. 94-354
14
the committee votes to close them. Since the rules do not specify the
grounds that justify closing a meeting, a committee may close a meet-
ing for any reason.
Section 102 would require House committees to close their meetings
only under the same specified circumstances as permit a Senate com-
mittee to close its meetings under section 101 (a). Public understanding
of the rules governing open meetings in the Congress will be enhanced
if the same open-meeting rules govern committee meetings in both
Houses. However, this provision is included with full recognition of
the right of the House of Representatives to establish its own rules
governing committee meetings. Section 105 of the bill specifically re-
serves the right of the House of Representatives to adopt different rules
should it wish to do SO.
SECTION 103-CONFERENCE COMMITTEES
Section 103 (a). This subsection adds a new provision to the Legisla-
tive Reorganization Act to govern conference committees. The rule pro-
vides that conferences between the Senate and the House will be open
to the public unless the managers of either the Senate or House in open
session decide to close the meeting on that particular day by a rollcall
vote of the majority of such managers present.
The provision is identical to a resolution the House has already
approved this year, House Rule XXVIII, clause 6. The House action
must await Senate action before it can become effective. While the pro-
vision establishes a presumption of openness, either House reserves
the right to close a meeting of a conference committee should it SO
wish.
Section 103 (b). This subsection amends the table of contents of the
Legislative Reorganization Act of 1946 to include a reference to the
new rule on House-Senate conferences.
SECTION 104-JOINT COMMITTEES
Section 104 (a), This subsection amends the Legislative Reorganiza-
tion Act by adopting rules governing joint committee meetings. The
rules are identical to the rules section 101 (a) establishes for the meet-
ings of Senate committees and section 102 (a) establishes for the meet-
ings of House committees. They should be interpreted and adminis-
tered in the same way.
Section 104 (b). This subsection amends the table of contents of the
Legislative Reorganization Act of 1946 to include a reference to the
new rules governing the meetings of joint committees.
SECTION 105-EXERCISE OF RULEMAKING POWERS
This section specifies that the rule changes contained in title I are
enacted pursuant to the rulemaking authority of the Senate and the
House of Representatives.
It recognizes that under the Constitution either House retains the
full right to subsequently change the rules established by title I insofar
as they apply to such House, regardless of the actions of the other
House. It is in no way the intent of the committee to interfere with the
right of the House of Representatives to adopt other rules governing
the opening of committee meetings should it SO wish.
15
TITLE II-AGENCY PROCEEDINGS
SECTION 201-OPEN MEETINGS
Section 201 (a). This subsection extends the principles of open gov-
ernment to Federal agencies by requiring meetings between the
various heads of a multiheaded agency to be open to the public. The
Declaration of Policy in section 2 applies with equal force to title I and
title II. Subsection (a) also defines the specific agencies, and the spe-
cific types of meetings, subject to the open meeting requirement.
AGENCIES INCLUDED
Subsection 201 (a) defines "agency" as in the Administrative Proce-
dure Act. A. governmental body may fall within the Administrative
Procedure Act definition, and thus fall within section 201, assuming it
qualifies under the other tests established by the subsection, even if
that agency is not actually governed by the other provisions of the
Administrative Procedure Act.
Section 201 does not apply, however, to all agencies. To be subject to
the section's open meeting provisions, the collegial body comprising
the agency must consist of two or more individual members, a ma-
jority of whom are appointed by the President with the advice and
consent of the Senate. Because of the unique nominating and confirma-
tion process governing appointments to the Federal Election Com-
mission, this agency is included by specific reference. The term "col-
legial body comprising the agency" does not refer to a single individual
who heads an agency with the assistance of staff, nor to the staff of an
agency. The term is limited solely to the two or more individuals
serving on the commission or board which heads the agency, though it
does include meetings of such a body when agency staff or outside
individuals are also present.
The subsection does not cover bodies typically known as advisory
committees. However, it does include other bodies comprised of part-
time Government employees which meet from time to time to review
agency activities and give guidance to staff, approve staff actions, re-
view and approve the agency's proposed budget, and SO on. Such a
board would constitute "the collegial body comprising the agency"
even though day-to-day supervision is provided by a single
Administrator.
Any body that is subject to this bill shall not at the same time be
subject to the provisions of the Federal Advisory Committee Act. Simi-
larly, any body that is now governed by the Federal Advisory Com-
mittee Act, or which is determined in the future to be governed by that
act, is not governed by this bill. The committee will rely on the con-
tinuing oversight of the Subcommittee on Reports, Accounting, and
Management to insure that any body that is properly subject to the
Advisory Committee Act will continue to follow the provisions of that
act.
The following is a list of agencies that in the committee's judgment
are covered by this section. It is based on consultations with the De-
partment of Justice. In the final analysis, however, the wording of
section 551 of title 5 and this subsection, rather than this list, must
govern:
Board for International Broadcasting;
Civil Aeronautics Board;
16
Commodity Credit Corporation (Board of Directors) ;
- Commodity Futures Trading Commission;
Consumer Product Safety Commission;
- Equal Employment Opportunity Commission;
Export-Import Bank of the United States (Board of
Directors) ;
- Federal Communications Commission;
Federal Election Commission;
- Federal Deposit Insurance Corporation (Board of Directors) ;
Federal Farm Credit Board within the Farm Credit Adminis-
tration;
- Federal Home Loan Bank Board;
Federal Maritime Commission;
- Federal Power Commission;
Federal Reserve Board;
- Federal Trade Commission;
Harry S. Truman Scholarship Foundation (Board of
Trustees) ;
Indian Claims Commission;
Inter-American Foundation (Board of Directors) ;
20 Interstate Commerce Commission;
-Legal Services Corporation (Board of Directors) ;
Mississippi River Commission;
National Commission on Libraries and Information Science;
National Council on Educational Research;
National Council on Quality in Education;
-National Credit Union Board;
National Homeownership Foundation (Board of Directors) ;
-National Labor Relations Board;
National Library of Medicine (Board of Regents) ;
30 National Mediation Board;
National Science Board of the National Science Foundation;
National Transportation Safety Board;
Nuclear Regulatory Commission;
Occupational Safety and Health Review Commission;
Overseas Private Investment Corporation (Board of Direc-
tors) ;
Parole Board;
Railroad Retirement Board;
Renegotiation Board;
Securities and Exchange Commission;
40- Tennessee Valley Authority (Board of Directors) ;
Uniformed Services University of the Health Sciences (Board
of Regents) ;
U.S. Civil Service Commission;
U.S. Commission on Civil Rights;
U.S. Foreign Claims Settlement Commission;
U.S. International Trade Commission;
U.S. Postal Service (Board of Governors) ; and
U.S. Railway Association;
S. 5 does not mandate open meetings in the case of single-headed
agencies, such as the Departments of Defense, Commerce, or Treasury,
17
because of the different nature of such agencies. Multiheaded agencies
operate on the principle of give-and-take discussion between agency
heads. There is a tradition of public dissent; though the agency takes a
final action, it does not necessarily speak with one voice. The agency
heads are high public officials, having been selected and confirmed
through a process very different from that used for staff members.
Their deliberative process can be appropriately exposed to public
scrutiny in order to give citizens an awareness of the process and ra-
tionale of decisionmaking.
The single-headed agency operates differently. Only the single head
is ultimately responsible for agency actions, while the staff functions
as extensions of the head. Opening staff meetings presents many com-
plications, not the least of which is determining which of the in-
numerable staff meetings that occur every day should be open. While
these difficulties may not be insurmountable, they require a different
approach than used in section 201.
It is the committee's hope that each agency not covered by section
201 will closely examine its internal procedures and take on its own
every step it can to open up its decisionmaking process, including
meetings, to the public. This might include, for example, opening to
the public meetings between agency officials and outside parties, and
providing the public with more information about why an agency took
a particular decision, and the alternatives it considered.
Section 201 (a) covers all multiheaded agencies, because the principle
of openness applies to all such agencies regardless of the particular
nature of its responsibilities. While many of those covered are regula-
tory, others have more general policymaking roles. The decisions of
one may involve no less important policy questions than the decisions
of the other. Opening one type of meeting to the public is as important
as opening another type. The notion of including some multiheaded
agencies in section 201 and excluding others would do violence to the
fundamental purpose of the legislation, which is to open Government
to the people wherever and whenever possible.
Section 201 (a) provides that all meetings of the individual Com-
missioners, board members, or the like, except those discussions ex-
empted by subsection (b), must be open to the public. Included within
this requirement are meetings of agency subdivisions authorized to
take action on behalf of the agency. The open meeting requirement
applies to panels of a Commission, or regional boards, consisting of
two or more agency heads and authorized to take action on behalf of
the agency. To be a subdivision of an agency covered by this subsec-
tion, the panel need not have authority to take agency action which
is final in nature. Panels or boards composed of two or more agency
members and authorized to submit recommendations, preliminary de-
cisions, or the like to the full commission, or to conduct hearings on
behalf of the agency, are required by the subsection to open their
meetings to the public.
Some agencies do not vest all power in the multiheaded body, but
reserve certain functions for the chairman alone. In such cases, meet-
ings of the chairman with staff members, or even with other individual
agency heads, acting solely as informal advisers, would not have to
be open.
18
Interagency meetings between members of one agency and officials
from other agencies would not come within the provisions of this sec-
tion unless a majority of the members of one or more of the agencies
attended the meeting. Similarly, interagency committees are excluded
from this section.
DEFINITION OF MEETING
The definition in subsection (a) of the meetings required to be open
to the public is a critical part of the section. A meeting means the
deliberations of at least the number of individual agency members re-
quired to take action on behalf of the agency where such deliberations
concern the joint conduct or disposition of official agency business.
In addition to business meetings of the agency, it includes hearings and
meetings with the public.
To be a meeting the discussion must be of some substance. Brief ref-
erences to agency business where the commission members do not give
serious attention to the matter do not constitute a meeting. A chance
encounter where passing reference is made to agency business, such as
setting a time or place for the agency heads to meet, would not be a
meeting. A luncheon attended by a majority of the Commissioners
would not be a meeting subject to the bill simply because one Commis-
sioner made a brief, casual remark about an agency matter which did
not elicit substantial further comment. The words "deliberation" and
"conduct" were carefully chosen to indicate that some degree of for-
mality is required before a gathering is considered a meeting for pur-
poses of this section.
The definition of meetings includes the conduct, as well as the dis-
position, of official agency matters. It is not sufficient for the purposes
of open government to merely have the public witness final agency
votes. The meetings opened by section 201 (a) are not intended to be
merely reruns staged for the public after agency members have dis-
cussed the issue in private and predetermined their views. The whole
decisionmaking process, not merely its results, must be exposed to
public scrutiny.
To constitute a meeting for purposes of this section the requisite
number of agency heads must at least be potentially involved in the
discussion. The use of the word "joint" is intended to exclude instances
where one or more agency member gives a formal speech concerning
agency business, and other members of the commission are in the
audience. The word also excludes instances where a single agency
head, authorized to conduct a meeting on behalf of the agency, or to
take action on behalf of the agency, meets with members of the public,
or staff. In all cases, the meeting must involve at least two agency
members for the deliberations to be joint.
The deliberations must also involve "official agency business." Dis-
cussions among all the agency heads about a purely social gathering
do not concern official business of the agency, and would not come
within the terms of the subsection. On the other hand, the mere setting
of the gathering is not determinative whether a gathering is a meeting
for purposes of this subsection. Discussions held in the board room or
the Chairman's office are not the only gatherings covered. Conference
telephone calls and meetings outside the agency are equally subject to
the bill if they discuss agency business and otherwise meet the require-
19
ments of this subsection. The test is what the discussion involves, not
where or how it is conducted.
The reference to the number of individual agency members required
to take action means a quorum. In some cases this may mean a simple
majority. In other cases, such as a hearing or a meeting conducted
by agency members on behalf of the agency, it may be less than a
majority of the agency, and as few as two agency members. In three-
member agencies, two members will constitute a quorum. This
situation will require special sensitivity and judgment. It is not the
intent of the bill to prevent any: two agency members, regardles of
agency size, from engaging in informal background discussions which
clarify issues and expose varying views. When two members are less
than a. quorum, such discussions would not in any event come under
the section's open meeting requirements. When two members constitute
a quorum. however, the agency must be careful not to cross over the
line and engage in discussions which effectively predetermine official
actions. Members of such agencies must use their judgment in these
situations, again with the awareness that this bill carries a presumption
of openness. Their discussions should remain informal and prelimi-
nary to avoid the open meeting requirement.
EFFECT OF SUBSECTION 201 (a)
Any meeting falling outside the definition in subsection (a) is not
subject to any of the other provisions of the bill. If a meeting does
come within the terms of section 201 (a), it must be open to the public
unless it involves matters described in subsection (b). Except as other-
wise provided in the bill, the agency must provide the public with
certain information about the meeting, whether or not it is open to the
public, and keep a verbatim record of meetings closed to the public
unless they involve cases of adjudication. These requirements are de-
scribed elsewhere in the section.
When a meeting must be open, the agency should make arrange-
ments for a room large enough to accommodate a reasonable number of
persons interested in attending. Holding a meeting in a small room,
thereby denying access to most of the public, would violate this section
and be contrary to its clear intent.
Nothing in subsection (a) requires an agency to permit the public
to actively participate in the meeting. Other statutes and agency
regulations and policies continue to govern such participation. Sec-
tion 201 (a) only gives the public the right to attend meetings, to listen
and to observe.
Section 201 (b). The requirements of section 201 (a) establish a pre-
sumption in favor of open meetings. Subsection (b) allows an agency
to close a meeting under certain circumstances, but these are exceptions
to the underlying rule of openness. Agencies wishing to close a par-
ticular meeting will have the burden of justifying their actions. This
approach reflects the philosophy of the bill that most government
business can and should be conducted in the public eye. Workable
limitations on openness are provided, but this section assures that
openness is no longer to be conceived as an exception to the rule of
secrecy.
20
Subsection (b) establishes 10 grounds on which an agency
may vote to close meetings or portions of meetings to the public
despite the rule of openness established by subsection (a). These
exemptions apply equally to agency subdivisions authorized to take
agency action. Closing a meeting on these grounds is permissive, not
mandatory. The agency should not automatically close a meeting be-
cause it falls within an exception. The phrase "Except where the
agency finds that the public interest requires otherwise," emphasizes
that an agency may still decide that the public good achieved by open-
ing the meeting outweighs the advantages to be gained by closing it.
In addition to closing a meeting, an agency may, on the same 10
grounds, withhold information about the meeting otherwise required
by subsections (c) and (d) to be disclosed. For example, an agency
need not disclose the subject matter of a closed meeting, or supply a
list of those persons attending the meeting, and their affiliation, if that
would disclose the very information that the meeting itself was closed
to protect.
As with sections 101, 102, and 104, this section provides specific
exemptions rather than grants of broad, discretionary authority to
agencies to close their meetings. This is in accordance with the bill's
policy that most meetings should be open, and closed meetings an ex-
ception. These exemptions should not be used to circumvent the spirit
of openness which underlies this legislation.
The 10 exemptions apply when the agency "properly" determines
that a closed meeting is appropriate. Improper determinations are sub-
ject to enforcement proceedings detailed in subsections (g) and (h).
In making its determination, the agency's must fairly conclude
that the meeting "can reasonably be expected" to fall within one of
the 10 exemptions. Thus an agency wishing to close a meeting need not
meet the test of absolute certainty, for it might not be possible to know
exactly what information the meeting will disclose. Rather, there must
only be a reasonable likelihood, based on the nature of the issue, past
experience with the similar discussions, and the expressed intent of
agency members to raise a sensitive matter. Where the possibility that
a meeting will involve exempt matters is fairly remote, the meeting
should begin as an open one. If the discussion does become sensitive,
the agency may always vote to close the session.
The 10 grounds provided in the act for closing a meeting are as
follows:
Section 201 (3) (1). This paragraph covers meetings which disclose
information specifically required to be kept secret by an Executive
order in the interests of national defense or foreign policy, and which
is properly classified pursuant to such Executive order.
The wording exactly follows the 1974 amendment to the Freedom of
Information Act, 5 U.S.C. section 552 (b) (1). The phrases "national
defense" and "foreign policy" should be given the same meaning
as in the Freedom of Information Act.
Subsection (e) requires an agency to keep a transcript or electronic
recording of a meeting closed to the public, and subsection (g) allows
a court to examine the record or other information before ordering
its release or opening a meeting. A court should therefore be able to
determine whether an agency is acting properly if it relies on this pro-
21
vision to close a meeting to the public. A holding analogous to that in
E.P.A. V. Mink, et al., 410 U.S. 73 (1973), in which the court de-
clined to permit in camera inspection of classified documents, would be
contrary to the intent of this exemption. It is expected that courts will
at their discretion examine documents in camera to determine the pro-
priety of the agency's action. Such examination need not be automatic,
but in many situations will definitely be necessary. Before ordering
in camera inspection, the court may at its discretion allow the Govern-
ment the opportunity to establish by means of testimony or detailed
affidavits submitted by a head of the agency that the meeting, or in-
formation related to it, is clearly exempt from disclosure under this
section.
Once an agency properly classifies information relating to national
defense or foreign policy pursuant to an Executive order, another
agency cannot legally declassify it. If an agency subject to this section
receives information properly classified by another agency, and public
disclosure of the information is prohibited, the meeting must be closed.
The agency would have no discretion, for the law provides that in
such a case the agency must accept on its face the classification placed
on the material by the originating agency. At the same time, the agency
may request the classifying agency to review the classification and re-
move the restrictions prior to the meeting.
Section 201 (b) (2). This paragraph exempts meetings which con-
cern solely the agency's own internal personnel rules and practices. The
purposes of this clause are to protect the privacy of staff members and
to facilitate the agency's internal administration. It is not intended to
cover an agency's discussion of personnel matters relating to any other
agency, or to individuals working for private employers. This word-
ing parallels the Freedom of Information Act, 5 U.S.C. 552 (b) (2).
This exemption does not include directions to agency personnel con-
cerning their responsibility vis à vis the public, such as manuals ex-
plaining job functions. It includes only internal management matters.
In some cases it will be appropriate for an agency to open a meet-
ing concerning matters of general public interest even though it
involves internal personnel rules and practices. For example, an agency
might open a discussion of the propriety of an employee's actions dis-
closing agency information to the public.
Section 201 (b) (3). This paragraph applies to meetings which dis-
close information of a personal nature where disclosure would con-
stitute a clearly unwarranted invasion of the personal privacy of an
individual. This may include a discussion of an individual's drinking
habits or health, or review of a grant application which requires as-
sessing an individual's professional competence. Or it may include
reviewing an individual's finances to determine his eligibility for
financial aid.
It is not intended that agencies will close all meetings that involve
personal information about individuals. Such restrictiveness is not in
accord with the policy of either the bill or this exemption. Moreover,
public officials and private individuals should be subject to different
considerations. For instance, a meeting might be closed under this
paragraph if it concerned the competence of the president of an entity
regulated by the agency. Yet if the discussion centered on the alleged
22
incompetence with which a Government official has carried out his
duties it might well be appropriate to keep the meeting open, since in
that case the public has a special interest in knowing how well agency
employees are, carrying out their public responsibilities. This para-
graph must not be used by an agency to shield itself from political
controversy involving the agency and its employees about which the
public should be informed.
The main purpose of this exemption is to protect an individual's
privacy. It would clearly not be appropriate, therefore, to invoke
this paragraph when the individual involved prefers the meeting to
be open. The procedures an individual may follow if he wishes a
meeting to be closed under this paragraph is detailed in subsection
201 (c) (1).
Section 201 (b) (4). This paragraph covers meetings which accuse
an individual or corporation of a crime, or formally censure such
person. The term "formally censuring any person" includes formal
reprimands. An agency may discuss a company's alleged crimes, such
as the submission of fraudulent documents, and consider whether to
refer the case to the Department of Justice for prosecution. An agency
regulating financial or security matters may wish to censure a firm
for failing to live up to its professional responsibilities, or an agency
may consider whether to formally censure an attorney for his conduct
in an agency proceeding. Opening to the public agency discussions
of such matters could irreparably harm the person's reputation. If
the agency decides not to accuse the person of a crime, or not to
censure him, the harm done to the person's reputation by the open
meeting could be very unfair.
This paragraph insures that where serious charges of this nature
are formally discussed by the agency, the agency has the latitude to
close the meeting, even if the discussion does not come within the
precise terms of paragraph (5), governing investigatory files, or any
other part of subsection (b). The provision should not be interpreted
as grounds for closing every meeting placing a company in a bad light.
To be applicable, the meeting must consider formal agency action
accusing a person of a crime or formally censuring a person.
Section 201 (b) (5). This paragraph applies to meetings which dis-
close information from investigatory records compiled for civil or
criminal law enforcement purposes. A meeting could be closed, how-
ever, only to the extent that disclosure of records would interfere with
enforcement proceedings; deprive a person of a right to a fair trial or
an impartial adjudication; constitute an unwarranted invasion of per-
sonal privacy; disclose the identity of a confidential source; disclose
confidential information furnished only by a confidential source in the
course of a criminal or national security intelligence investigation: dis-
close investigative techniques and procedures; or endanger the life or
physical safety of law enforcement personnel. This exemption is the
same as the comparable provision in the Freedom of Information Act,
as amended in 1974, 5 U.S.C. section 552 (b) (7), and should be inter-
preted in a manner consistent with that act. It is included in recog-
nition of the fact 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.
23
The investigatory records to be disclosed must have been "compiled
for law enforcement purposes," involving specific persons. General rec-
ords such as annual surveys are not included in this exemption. The
provision would be applicable to certain discussions of the legal
strategy and tactics to be used in a specific investigation, such as the
issuance of a subpena where public knowledge of the discussion might
lead to the destruction of documents. It would apply to a discussion
identifying a particular individual as a confidential source who sup-
plied specific information. It would not, however, apply to the
information supplied by the confidential source in a civil law enforce-
ment investigation which does not disclose the identity of the source.
If agency consideration of the matter has advanced to the point where
it specifically discusses the initiation, conduct, or disposition of a par-
ticular case of adjudication, paragraph (9), rather than this para-
graph, will apply. As in the case of the rest of subsection (b), an
agency may not be held to a showing of obsolute certainty before
invoking this provision. The meeting may be closed if the agency
properly determines, on the basis of its general experience and knowl-
edge of the particular facts, that the meeting can reasonably be ex-
pected to fall within the terms of the paragraph.
Section 201 (b) (6). This paragraph applies to meetings which dis-
close trade secrets or financial or commercial information obtained
from any person where such trade secrets or other information could
not be obtained by the agency without a pledge of confidentiality, or
where such information must be withheld from the public in order to
prevent substantial injury to the competitive position of the person to
whom such information relates.
The trade secret exemption draws on current case law and com-
mentary regarding exemptions for trade secrets and commercial or
financial information found in other laws, especially the Freedom of
Information Act, 5 U.S.C. section 552 (b) (4). Rather than repeat the
original wording contained in the Freedom of Information Act, para-
graph (6) reflects as clearly as possible the present direction of the
law.
Paragraph (b) (6) involves three tests. First, the information must
be either (a) a trade secret, or (b) financial or commercial in nature.
For example information relating to oil or gas reserves collected by
an oil company, a technological invention of commercial value, and
the level of a company's anticipated price rises, would all be covered by
this paragraph.
Second, the information, whether a trade secret or financial or com-
mercial information, must have been directly or indirectly obtained
from a person as defined by section 3 of the bill. It includes informa-
tion one agency has obtained from a person and in turn provided to
another agency.
The third test is posed in the alternative. The first criteria is satis-
fied if there was no legal way for the agency to obtain the information,
whether by voluntary or involuntary means without a pledge of con-
fidentialitv. This requirement is not satisfied if an agency could have
subpenaed the information, or if a statute required the person to fur-
nish it to the agency. whether or not the agency actually subpenaed
the information. Pledges of confidentiality do not satisfy this clause
24
where the agency could have gone to court and obtained the informa-
tion without giving such a pledge. The purpose of this test is to avoid
impairing the Government's ability to obtain necessary information,
where governmental access to information must depend on the volun-
tary cooperation of private individuals and businesses.
The third test may also be satisfied, and a meeting closed, if the
information must be kept secret in order to prevent substantial injury
to the competitive position of the person to whom the information re-
lates. This may include information an agency can obtain involuntarily
from a person. The "competitive position" affected by public disclosure
must be that of the person "to whom such information relates." It does
not apply to persons who can only make a general demonstration of
commercial interest in the information to be disclosed. On the other
hand, it does include a person possessing a trade secret which he has
not yet used, but which he is likely to put to commercial use in the
future.
Section 201 (b) (7). This paragraph applies in certain specific in-
stances where premature disclosure of information would destroy an
agency's ability to perform its functions effectively. Subparagraph
(A) applies to such agencies as the Federal Reserve Board, the Secu-
rities and Exchange Commission, the Federal Deposit Insurance Cor-
poration, and similar agencies that regulate currencies, securities,
commodities, or financial institions. The term "financial institutions"
is intended to include banks, savings and loan associations. credit
unions, brokers and dealers in securities or commodities, exchanges
dealing in securities or commodities, such as the New York Stock
Exchange, investment companies, investment advisers, self-reg-
ulatory organizations subject to 15 U.S.C. $ 78s, and institutional
managers as defined in 15 U.S.C. 78m (f). These agencies often dis-
cuss sensitive financial matters. When premature discussion of issues
by these agencies would either (i) lead to serious financial speculation,
or (ii) seriously endanger the stability of a financial institution, the
meeting may be closed. A Federal Reserve Board discussion of the pre-
carious financial state of a member bank could be closed under this
provision. A securities and Exchange Commission discussion whether
to suspend trading in a certain stock would also be included. Certain
extremely sensitive financial actions cannot be disclosed until several
months after they are taken. The wording therefore applies to an
agency discussion of action already taken, as well as to a proposed
action. This exemption, as all others, is prefaced by the phrased "can
reasonably be expected" to disclose certain information. An agency
seeking to close a meeting would therefore not have to conclude to an
absolutue certainty that serious speculation would occur.
Subparagraph (B) applies to actions by any agency when prema-
ture disclosure of its plans would seriously frustrate effective imple-
mentation of its actions. An example would include discussion of the
strategy an agency will follow in collective bargaining with its em-
ployees. Public disclosure might make it impossible to reach an agree-
ment. Or an agency may consider imposing an embargo on the foreign
shipment of certain goods. If this were publicly known. all the goods
might be exported before the agency had time to act, and the effective-
ness of the proposed action destroyed. The discussion could involve
25
agency approval of a proposed merger, if premature public disclosure
of the proposal would make it impossible for the two sides to reach
an agreement.
Subparagraph (C) applies to premature disclosure of an agency's
plans to purchase a particular piece of land for itself. Public knowl-
edge of the proposed action might drive up the price of the parcel
under consideration, or lead to considerable land speculation.
The last sentence in paragraph (7) provides that an agency may
not close a meeting pursuant to this paragraph if it has already pub-
licly announced the content or nature of the action under considera-
tion. Since the paragraph only applies when an agency feels it must
act in secret, it would be contrary to the intent of this provision for
an agency to rely on it when the public is already aware of the actions
being considered, or where the Administrative Procedure Act or other
statute requires the agency to publicly announce its proposal before
taking final action. Thus, if an agency has already announced a pro-
posed rule, or generally disclosed the nature or content of its proposed
action, or if it must do SO under the requirements of the Administra-
tive Procedure Act before finally adopting the rule, discussion of the
proposal to issue a rule, or take other action, could not be closed under
this paragraph. Discussion of a complaint that has already been issued,
or which must be issued, before final agency action is taken may be
closed under other paragraphs, but not this one. The proviso in the
last sentence of the paragraph will be applicable even if an agency
has not already disclosed the exact wording of the proposal, or dis-
closed every detail of a proposed action. If the agency has already
disclosed enough of the content or nature of the rule to give the public
an idea of what the agency is proposing, it may not invoke para-
graph (7).
The words "serious" and "seriously" qualify both subparagraphs
(A) and (B). Without such a qualification, the provision could be
read as endorsing a closed meeting even though, for example, the
amount of speculation it might produce would be insignificant, or
implementation of a proposed action would only be minimally "frus-
trated" by an open meeting. "Serious" means that there must be a
balancing test, just as elsewhere in this bill, to determine how the
public interest is best served.
Section 201 (b) (8). This paragraph applies to meetings which dis-
close information contained in or relating to examination, operating,
or condition reports on financial institutions. These reports are pre-
pared by or for the use of such banking agencies as the Federal Re-
serve Board, Federal Deposit Insurance Corporation, and the Federal
Home Loan Bank Board. This provision is identical to exemption
(b) (8) of the Freedom of Information Act and should be interpreted
in the same way.
Section 201 (b) (9). This paragraph applies to meetings concerning
the agency's participation, or preparation to participate, in a civil
action in Federal or State court, or the initiation, conduct, or disposi-
tion of agency adjudication governed by section 554 of title 5, United
States Code, or similar provision.
The first portion of the paragraph applies to an agency discussion
of its participation in a civil action in Federal or State court. This
S. Rept. 94-354-4
26
includes discussions concerning whether the agency should either bring
an action itself or ask the Department of Justice to bring it. The second
portion of the paragraph refers to formal adjudications conducted by
the agency itself. The paragraph refers to an adjudication "otherwise
involving a determination on the record after opportunity for a hear-
ing" in order to include formal agency adjudications on the record not
governed by section 554 of the Administrative Procedure Act. The
paragraph only covers proceedings which follow sections 556 and 557
of the Administrative Procedure Act, or similar procedures.
The committee felt that it would be inappropriate for several reasons
to require agencies to open meetings discussing specific cases of adjudi-
cation. Public disclosure of an agency's legal strategy in a case before
the agency or in the courts could make it impossible to litigate suc-
cessfully the action. Public discussions of the guilt or innocence of a
particular individual in agency adjudication could unfairly injure a
person's reputation, or make it impossible for him to receive a fair
or impartial hearing. Adjudications of the type covered by this para-
graph must already be decided solely on the information in the record.
Unlike other cases, the entire record on which the agency must make
its decision in adjudication is open to inspection by any member of
the public. Section 202 of the bill, prohibiting ex parte contacts, will
help insure that such decisions are in fact based solely on the record.
Finally, many aspects of the adjudicative process, such as the trial
before an administrative law judge or appellate arguments before the
commission are generally open now to the public.
To fall within the provisions of this paragraph the discussion must
concern a particular case of adjudication. If the agency discusses a
particular series of cases, each of which meets the requirements of this
paragraph, the meeting may also be closed. The paragraph would not
apply when an agency discusses its adjudication policies in general,
such as the policy that should be adopted towards all those that may
violate a particular law.
Although a proceeding may technically involve an agency adjudica-
tion or proceeding in district court, it may still be possible for the
agency to open its deliberations to the public. For instance, the agency
may only be discussing a legal point. Or the discussion may involve a
formal rule making proceeding where general agency policy, rather
than the facts of a particular case, are determinative. Ho'ding such
meetings in the open would increase public understanding of the laws
the agency administers, and the agency's interpretation of them. In
other cases, a particular aspect of the adjudicative process may be
required by other law to be open. In such event, this provision would
not permit an agency to close a meeting otherwise required to be open.
Section 201 (b) (10). This paragraph applies to meetings which in-
volve information required to be kept secret by another statute. In
such case, the agency must close its meetings notwithstanding the per-
missive nature of section 201 (b).
Statutes which permit Government officials to withhold information
on general discretionary grounds such as "in the public interest" are
not included here. Thus. the statute involved in Administrator, FAA V.
Robertson, 95 S. Ct. 2140 (1975), would not qualify for this exemp-
tion. Nor would the provisions of the Freedom of Information Act
27
apply since that statute permits but does not require the agency to keep
any information from the public. The provision only refers to statutes
which require specific types of information to be withheld from the
public, or which describe by particular criteria the type of information
that must not be disclosed. For example, individual's income tax return
could be discussed in private under this provision, pursuant to 26
U.S.C. 6103. The limitations on the public disclosure of information
imposed on agencies by the Privacy Act, 5 U.S.C. 552a (b), would
also apply. The statute governing disclosure of information about
complaints received by the Equal Employment Opportunity Commis-
sion, 42 U.S.C. 2000e-5 (b), would come within this paragraph.
Section 201 (c). Subsection (c) establishes the procedures an agency
must follow if it wishes to close a meeting under subsection (b). The
subsection will be inapplicable when an agency meeting remains open.
In those cases where an agency meeting must be closed, this subsection
permits closure in a way that will not interfere with the efficient or
expeditious conduct of agency business.
Paragraph (1) provides that a meeting may be closed only by a
majority vote of the entire membership of the agency. The vote of a
simple majority of a quorum would not suffice to close the meeting.
Subdivisions of the agency are subject to the same requirements. Each
vote must be recorded and must be made public by the agency within
one day. Where a meeting of agency heads is convened to discuss the
matter, no proxies are allowed. The voting procedures specified in
paragraph (1) are equally applicable to the other votes an agency
may be required to take pursuant to this bill. Closing an agency meet-
ing, or denying the public information about it, is a significant deci-
sion. It should not be taken without the concurrence of a majority
of the entire body, and in accordance with the other procedures speci-
fied in this paragraph.
If an agency needs to close only certain portions of a meeting, its
vote must be in specific reference to those portions. It is recognized in
section 201 that an agency may have to close a portion of a meeting,
but that the remainder of the meeting may remain open. In such cases
the closed portions of the meeting are governed by the same proce-
dures as if it were a separate meeting. Thus references throughout sec-
tion 201 to meetings that an agency wishes to close are also intended
to refer to a portion or portions of a meeting which an agency wishes
to close.
Generally, a separate vote must be taken on each meeting, or por-
tion of a meeting, the agency wishes to close. A single vote can be
taken, however, to close a series of meetings, where all the meetings
will be held within a 30-day period and involve the same "particular
matters." The latter phrase means morè than general similarity of
content. It must involve the same agenda item, such as a particular
bank application, a proposal to suspend trading in a particular se-
curity, or the like. This provision was added so that the agency would
not have to vote repeatedly on whether to close the same discussion
which stretches over more than one meeting. The procedures govern-
ing the closing of meetings also apply should an agency wish, pur-
suant to subsection (b), to withhold information about the meeting
otherwise required by subsections (c) and (d) to be disclosed.
28
Agency members will not normally need to meet to decide whether
to close a subsequent meeting or to decide upon the agenda for the
meeting. It is anticipated that the agencies will instead use notation
voting, or similar procedures, to determine whether to close the meet-
ing. As is currently the case, the agenda may be prepared by informal
means which do not require the convening of all the agency heads.
Nothing in this subsection is intended to prohibit such procedures. If,
however, a matter of unusual importance has generated great public
interest, the agency heads may choose to have a separate preliminary
meeting to decide whether to close a meeting. Where the agency has
such a preliminary meeting, it too would have to be open unless closed
pursuant to subsection (b). Such a meeting would be subject to the
same notice requirements, and exceptions, as any other meeting.
In some cases a person may believe that an agency meeting directly
affecting him would constitute an invasion of personal privacy (section
201 (b) (3) accuse him of criminal charges (section 201 (b) (4) or
disclose information affecting him in an investigatory file (section
201 (b) (5) The subsection specifically recognizes the right of a per-
son in such circumstances to ask the agency to close the meeting. If one
member of the agency concludes that the person may be directly and
adversely affected by holding the meeting in public, the entire agency
must vote on whether to close the meeting. The purpose of this clause
is to insure that an agency considers any person's legitimate concern
that an open meeting may harm him in a direct and personal manner.
It should help guarantee, for instance, that an agency does not inadver-
tently overlook the possibility that a particular discussion, if held in
public, would constitute an invasion of personal privacy or disclose
the identity of a confidential source.
Section 201 (c) (2). Paragraph (2) requires an agency to publish a
full written explanation of its decision to close any meeting within
one day of the vote to do SO. A list of persons expected to attend the
closed meeting, and their affiliations must accompany the explanation
except as provided by subsection (b). The explanation should not only
refer to the specific paragraph in subsection (b) which the agency is
invoking, but explain why the specific discussion falls within the
paragraph cited, the relative advantages and disadvantages to the pub-
lic of holding the meeting in closed or open session, and why the
agency concluded on balance that the public interest would best be
served by closing the meeting. The explanation and the accompanying
list need not disclose information described in subsection (b), where
such disclosure would have the same undesirable effect as opening the
meeting itself. In all but the most extraordinary circumstances, how-
ever, the agency should be able to give some specific explanation of its
action. In such case, the agency must do SO in as detailed terms as
possible.
Section 201 (c) (3). Paragraph (3) provides that any agency which
will be closing a majority of its meetings under paragraph (6),
(7) (A), (8), or (9) of subsection (b) may do SO by regulation, and
under expedited procedures. The agency can qualify under this sub-
section if it must close a majority of its meetings under any one of these
paragraphs, or under two or more of these paragraphs. Paragraph (3)
will largely apply to agencies which regulate financial institutions,
29
securities, or commodities, and which will often have to conduct their
sensitive business in private, and on short notice. It will also apply to
agencies whose primary or sole task is to conduct cases of adjudica-
tion. Agencies which may possibly issue regulations pursuant to these
provisions include the Federal Reserve Board, the Securities and Ex-
change Commission, and the National Labor Relations Board.
The records of agency meetings over the past several years should
indicate whether an agency may properly close a majority of its meet-
ings under this paragraph. Even if it could close a majority of its
meetings, an agency should examine whether it will really need to close
such a large number of its meetings under the specific paragraphs cited
in subsection (c) (3). Full recognition must be given to the fact that
this bill establishes a new principle of openness that is equally ap-
plicable to all agencies.
The issuance of any regulations pursuant to subsection (c) (3) shall
be governed by subsection (f). The regulations should fully document,
on the basis of the past history of agency meetings, the likelihood that
it will have to close a majority of its meetings pursuant to paragraph
(6), (7) (A), (8) or (9). The regulation should also specify in detail
the types of meetings to which the regulations apply and which exemp-
tion is relied upon as the grounds for closing each type of meeting.
An agency that has properly issued such regulations may announce
in advance of a particular meeting that it proposes to close the meeting
pursuant to its regulations. The agency then need only vote at the
beginning of the meeting itself that the meeting should in fact be
closed.
An agency which operates under regulations authorized by this
paragraph need not comply with the remainder of subsection (c), or
the notice requirement imposed by subsection (d), with respect to any
meeting closed by regulation. One-week notice to the public of the
meeting would not be necessary. The agency must, however, provide
a public announcement of the date, place, and subject matter of the
meeting at the earliest practicable opportunity. This announcement
should be similar to that required by subsection (d). Disclosure of in-
formation about a meeting governed by subsection (c) (3) is also sub-
ject to subsection (b), SO that information otherwise required to be
disclosed in the public announcement of the meeting, may be withheld
if it falls within the provisions of subsection (b). As used in this sub-
section, the term "earliest practicable opportunity" has the same mean-
ing as in subsection (d). If an agency subject to this paragraph wishes
to change the subject matter of a previously announced meeting, it may
do SO at the earliest practicable opportunity, just as in the case of a
meeting governed by subsection (d).
Section 201 (d). This subsection requires advance public notice of
all agency meetings. Such information must be made available by an
agency in order to make the public's right to attend a meeting
meaningful.
The subsection requires the agency in most cases to publicly an-
nounce the date, place, subject matter of a meeting, and whether open
or closed, at least one week beforehand. The identification of the sub-
ject matter must be adequate to inform the general public thoroughly,
referring, for example, to a specific docket number, the name of the
30
applicant, the identity of the proposed rule, and the like. Reference to
a generic subject matter, such as "consumer complaints," or "applica-
tions for new routes," does not meet the requirements of this subsection.
If a majority of the entire membership of the agency votes that
agency business requires a meeting to be held with less than 7 days
notice, the required public notice must still be provided at the earliest
practicable date. This provision allows agencies to schedule a meeting
where consideraion of an emergency matter can not be delayed 7 days.
It recognizes that the public interest in obtaining rapid agency action
may at times override the public interest in receiving advance notice of
meetings. This clause does not, however, allow an agency to wait until
the last moment to schedule a meeting, when agency business truly re-
quires it, if the meeting could have been scheduled in time to give the
public a week's notice.
When notice of a meeting is provided less than 7 days in advance, it
must still be provided "at the earliest practicable opportunity." In
most cases this should still permit several days notice to the public. If
the need is genuine, however, the announcement may be made only
hours in advance of the meeting. In the unusual case, the announce-
ment may have to be issued simultaneously with the convening of the
meeting. Or a meeting which has already started as an open one, may
suddenly have to be closed if some sensitive matters unexpectedly
arises. Even if, in such circumstances, the public does not in fact learn
of the meeting until after it has occurred, the announcement must be
made to provide a record of such meetings.
After a meeting is scheduled and public announcement provided, the
subject matter of the meeting or the decision to open or close the meet-
ing, may be changed if two conditions are satisfied. First, a majority
of the entire membership of the agency must vote that agency business
requires the change, and that earlier announcement of the change was
not possible. Second, an agency must publicly announce the change at
the earliest practicable opportunity. The same considerations as dis-
cussed above apply to the timing and nature of such announcements.
This procedure anticipates cases when agency business requires that
a matter be added to an agenda on a few days or even a few hours
notice. For example, a motor carrier may apply for an emergency tem-
porary operating license in order to provide fuel, food, clothing or the
like to those who need it immediately. Agency action within days or
hours may be necessary. In such a case, the matter could be added to
the already announced agenda of the meeting, or the agency could call
a separate meeting to consider the matter. The decision to close a meet-
ing previously open to the public might also occur on short notice. or
even at the meeting itself, when a new subject or new facts arise. The
provision is designed to provide the flexibility necessary to insure expe-
ditious agency action.
Whenever an agency provides public announcement of its meet-
ings, it should use a variety of means to insure that the informa-
tion reaches the public as quickly and reliably as nossible. Agencies
may wish to issue a weekly calendar of scheduled meetings. Such
calendars could he mailed to those who express special interest in being
informed about the agency's activities. Agencies should also use public
bulletin boards, press releases, and recorded telephone messages de-
31
scribing the status of agency meetings scheduled for the next 7 days.
There is no requirement that announcement of the meeting or any
changes made concerning such meetings appear in the Federal Register
prior to the meeting. However, this should be done whenever possible.
In any event, the information must be printed in the Federal Register
as soon as possible following the first public announcement. Even if
this does not occur until after the meeting, such notice will provide
a record of all agency meetings in a single publication widely avail-
able to members of the public.
The subsection also requires an agency, when announcing its meet-
ings, to include the name and telephone number of an agency em-
ployee whom the public may contact for more information about the
meeting. This is a practice already followed with success by some
agencies in connection with meetings between agency officials and
members of the public.
Section 201 (e). This subsection requires that a complete verbatim
transcript or electronic recording be made of each meeting the agency
votes to close, unless it is a meeting concerned solely with adjudicative
matters covered by subsection 201 (b) (9). Where an agency makes an
electronic recording of the meeting, rather than a written transcript,
the tape should be coded, or other records kept, adequate to identify
each speaker. The agency must on its own initiative promptly pro-
vide to the public the complete transcript or electronic recording of
any item on the agenda where no significant portion of its discussion
would disclose information falling within subsection (b). If only one
or two brief references to sensitive matters were made in a lengthy
discussion of an item on the agenda, the record of the discussion, minus
the one or two references, must be made public. Agencies need not edit
a transcript or electronic recording of the Commission's discussion of
a particular matter word by word SO as to make abbreviated portions
of the record of the meeting available to the public. Where sensitive
matters are an integral part of the record of the discussion of a matter,
no part of the record need be made public. The reference to each item
on the agenda, or the testimony of each witness, includes each easily
identifiable segment of a meeting. Even if an agency does not in fact
have a formal agenda for the meeting, or receive testimony, the phrase
would include the agency's discussion of each separate issue or other
equivalent matter which it takes up at the meeting.
The subsection does not require the agency to follow any specified
procedure in determining whether to make the record of a meeting
available to the public. It does not require, for example, that a record
of the vote be provided the public, or even that a formal vote on the
matter be taken.
The requirement that agencies keep a transcript or electronic re-
cording of a closed meeting constitutes an integral part of the open
meeting requirements of the bill. Subsection (e) should be used to
inform the public about the bulk of the discussion of any item on the
agenda where the consideration of sensitive matters occurs in an easily
identifiable segment of the discussion occupying only a small portion
of the time devoted to the entire agenda item. Or it may be that an
entire discussion does not in fact involve any sensitive matters jusifying
the closing of a meeting, even though the agency reasonably expected it
32
would when it closed the discussion. In yet other instances a meeting
will be closed because it involves matters which are sensitive at the
time, such as the regulation of financial institutions, that would cause
financial speculation if disclosed prematurely. Later, however, the dis-
cussion's sensitive nature may disappear. An agency must then pub-
licly release the record of its meeting at a later date when paragraph 7
no longer applies. Finally, subsection (e) will permit interested mem-
bers of the public to learn what transpired at a meeting which a court
later holds was improperly closed.
The transcripts and recordings that may be made public must be
promptly placed in a public document room. The agency must do this
on its own initiative, rather than waiting until it receives a particular
request. Where a meeting was unnecessarily closed to the public it
should take the agency a week or less to make the record available to
the public. The room for storing the transcript or electronic recording
must be easily accessible to the public in an unrestricted area of the
building. In the case of electronc recordings some provision must, of
course, be made to permit members of the public to listen to them,
and to identify each speaker. Copies of transcripts, or transcriptions
of the tapes identifying all speakers, must be provided at the actual
cost of duplication or transcription. If a person requests a copy of a
tape, rather than a transcription of it, this should also be provided
at the actual cost of copying.
When people ask for copies of the records of meetings available to
the public, agencies should follow procedures similar to those adopted
under the Freedom of Information Act, 5 U.S.C. section 552 (a) (4)
(A). Regulations should be promulgated, pursuant to subsection (f),
which specify a uniform schedule of fees. The fees should be limited
to reasonable standard charges for duplication. which may include
appropriate pro rata labor costs. Fees should not be used to discourage
requests for copies of the record of a meeting. Documents should be
furnished at a reduced or zero charge when the agency determines
that such action is in the public interest, or will primarily benefit the
general public.
The transcripts or tapes must be maintained by the agency for 2
years, or for 1 year after the conclusion of the proceeding to which
they relate, whichever occurs later. If an agency discusses the initia-
tion of a proposed investigation at a closed meeting, the record should
be retained until the investigation, and any agency adjudication aris-
ing from it, is completed and final agency action taken.
Section 201 (f). This subsection requires each agency to promulgate
regulations implementing the requirements of subsections (a) through
(e) within 180 days after enactment of the act. The regulations
should, for example, describe how the agency will publicly announce
its meetings, establish procedures for closing meetings where neces-
sary, specify how the public can obtain records of formerly closed
meetings, and at what cost. Any agency that invokes the provisions of
subsection 201 (c) (3) must issue implementing regulations pursuant
to this subsection.
If an agency does not promulgate regulations within 180 days,
any person may bring a proceeding in the U.S. District Court for the
District of Columbia to compel issuance of the regulations. Any per-
33
son has the right to challenge the adequacy of the regulations that
are issued by the agency in the District of Columbia of Appeals.
A person may invoke this provision, for instance, to challenge the
applicability of subsection (c) (3) to a particular agency. If an issue
is too speculative or remote, the Court of Appeals may refuse to
entertain the suit. Any person has standing to bring an action since
the bill is designed to protect the right of the general public to attend
agency meetings. Thus, standing to bring action under this section
cannot be limited to only those persons who may be directly affected
by particular agency action taken at the meeting. Any person with
sufficient interest in the matter to want to bring suit under this section
will be able to do so.
Section 201 (g). This subsection gives the U.S. district courts juris-
diction to enforce the requirements of subsections (a) through (e)
by declaratory judgment, injunction, or other appropriate relief. Any
person may bring an action in the district where he resides or has his
business, or where the agency is headquartered, prior to or within
60 days after, the meeting to which the violation relates. If the agency
fails to announce the meeting when required by subsection (d), the
suit may be brought within 60 days after the date that any public
announcement is actually made. If an agency provides no public an-
nouncement at all, the 60-day requirement is inapplicable.
Before instituting a suit, the plaintiff must first notify the agency
and give it a reasonable period of time, not to exceed 10 days, to cor-
rect the violation, or to prevent it from occurring in the first place.
If the plaintiff is seeking to open a meeting which has not yet been
held, he need not give the agency more than 2 days to act. Under
certain circumstances, reasonable notice will be less than the maximum
possible period. Where the meeting will be held in less than 2 days,
for example, a reasonable length of time might be only several hours.
While a person waits for a response to his request that the agency
correct an asserted violation, the 60-day statute of limitations shall
be tolled.
It is important that actions brought under this subsection be han-
dled expeditiously in order for public participation to be meaningful.
Accordingly, the defendant must serve his answer within 20 days after
service of the complaint.
The burden of proof is on the agency to sustain its conduct. This is
in accord with the presumption of openness established in the bill.
Those who wish to operate in secrecy should have to justify it. Further-
more, in most cases the agency will be the only party in possession of
information that might justify closing the meeting. The burden must
therefore be on the agency to produce any facts that may support its
action. In deciding cases, the court may examine in camera any tran-
script or recording of a closed meeting, and take additional evidence as
needed. In appropriate cases, it may also permit attorneys for all
parties to examine the record of the meeting and argue the case in
camera.
Under subsection (g) the court may grant appropriate equitable
relief. This may include ordering an agency to open a meeting it had
planned to close, ordering the release of the record of an improperly
closed meeting, or issuing a declaratory judgment.
34
The subsection specifically provides that it does not confer any
jurisdiction on district courts to invalidate agency action taken at an
illegally closed meeting. This provision is also intended to prohibit the
district court from enjoining any action taken at an improperly closed
meeting, or compelling the agency to take any action, where the action
in question is not directly related to the requirements of this bill. Any
relief the district court does grant pursuant to this subsection is sub-
ject to the requirement that it be with due regard for orderly admin-
istration and the public interest, as well as the interests of the parties.
Normally it should not be necessary for a court to enjoin the holding
of a meeting in order to correct violations of this section. The court
may do so, however, where, for example, the agency's violation is
flagrant, or where the matter does not demand immediate action, and
the public interest in the matter is great.
As in the case of subsection (f), any member of the public has stand-
ing to bring suit under this subsection. The subsection authorizes suit
to be brought against an individual member of the agency, as well as
the agency itself. This provision is required by subsection (i), which
permits a court to assess costs against an individual member of an
agency in certain extraordinary cases. As in other instances when a
Government official is named as a defendant in a suit, the Federal Gov-
ernment should defend individual agency members sued under this
subsection.
Section 201 (h). This subsection allows any Federal court otherwise
authorized by law to review other agency action to also review an
agency's compliance with this section. If the action an agency took
at a closed meeting was not otherwise reviewable by the court, this
subsection would not make that action, or the agency's compliance with
this subsection reviewable. Review of agency compliance with this
section may be conducted under this subsection at the request of any
person who may otherwise properly participate in the judicial review
proceeding pursuant to 5 U.S.C. section 702, or other applicable law.
For example, a company challenging the validity of an agency rule,
may include in its challenge the fact that the agency adopted the
rule in a meeting improperly closed to the public.
The reviewing court can afford any relief it deems appropriate.
This may include ordering the release of a transcript of an improperly
closed meeting. It may also include reversing an agency action on the
grounds that it was taken at a meeting improperly closed to the public.
It is expected that a court will reverse an agency action solely on such
grounds only in rare instances where the agency's violation is inten-
tional and repeated, and the public interest clearly lies in reversing
the agency action.
Section 201 (i). This subsection allows the court to assess against any
party the reasonable attorney fees and other litigation costs incurred
by any party who substantially prevails in an action brought pursuant
to subsection (f), (g), or (h). Other litigation costs may include
reasonable fees for attorneys and expert witnesses. This portion of the
subsection is based on similar provisions in the Freedom of Informa-
tion Act (5 U.S.C. 552 (a) (4) (E)) and the Privacy Act (5 U.S.C.
552a (g) (2) (B))
Cost may be assessed against an individual agency member, rather
than against the agency itself or the United States, only when the
35
agency member has intentionally and repeatedly violated section 201.
Costs may only be assessed against the plaintiff under this subsection
when he has brought a suit for frivolous or dilatory reasons. The
committee feels these provisions will, on the one hand, help assure
compliance with the section, and, on the other hand, prevent unneces-
sary litigation against an agency already in compliance.
Section 201 (j). This subsection requires agencies subject to section
201 to annually report to Congress on their compliance with the sec-
tion. The report must include the number of meetings open and closed
to the public, reasons for closing the meetings, and a description of
any litigation brought against the agency under this section.
SECTION 202-PROHIBITION OF EX PARTE COMMUNICATIONS
Section 202 (a). This subsection amends the provisions of the Ad-
ministrative Procedure Act governing adjudication and formal rule-
making (4 U.S.C. 557) by establishing a broad prohibition against ex
parte communications in such formal, trial-type proceedings. It
applies to all agencies governed by the Administrative Procedure Act,
whether or not the agency is subject to section 201 of the bill. Such a
prohibition is presently implied by section 556 (e) of the Administra-
tive Procedure Act which states that "the transcript of testimony and
exhibits, together with all papers and requests filed in the proceeding,
constitute the exclusive record for decision." Yet the act contains no
general statutory prohibition against ex parte contacts. If a court now
wishes to invalidate an agency proceeding because of ex parte contacts,
it must rely on constitutional standards, rather than specific provi-
sions. See e.g., Sangamon Valley Television Corp. V. F.C.C., 269 F. 2d
221 (1959). Section 202 provides for the first time a clear, statutory
prohibition of ex parte contacts of general applicability.
The prohibition only applies to formal agency adjudication. In-
formal 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 do not 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 con-
tacts, this section will supplement those provisions. 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 includes, for example,
requests by one party to a proceeding for subpenas, adjournments, and
continuances.
Paragraph (1) forbids contacts between an interested person out-
side the agency and any agency member, administrative law judge, or
other employee involved in the decisionmaking process. The word "em-
plovee" includes both those working for the agency full time and
individuals working on a part-time basis, such as consultants.
36
The wording "interested persons" 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 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 organiza-
tions and associations with a special interest in the matter regulated.
As used in this section, "person" has the same meaning as elsewhere in
the Administrative Procedure Act.
The rule applies to interested persons who "make or knowingly cause
to be made" an ex parte communication. The latter phrase contem-
plates indirect contacts which the interested person approves or ar-
ranges. 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
knowingly causing an ex parte contact.
Contacts are prohibited with any agency members, administrative
law judge, or other employee who is or may reasonably be expected
to be involved in the agency's deliberations. The words "may reason-
ably be expected" make it clear that absolute certainty is not re-
quired when predicting whether an agency employee will be involved
in the decisional 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 proceess. 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 proceeding. a list of officials expected to be
involved in the decisional process. 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
"relevant to the merits of the proceeding." This phrase is intended to
be construed broadlv 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 reports. which
will not have any effect on the way the case is decided. It excludes
general background discussions about an entire industry which do
37
not directly relate to specific agency adjudication involving a member
of that industry, or to formal rulemaking involving the industry 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 communica-
tion containing such data does not directly discuss the merits of a
pending adjudication it is not prohibited 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 influ-
ence the substantive outcome of the proceedings. The judgment will
have to be made whether a particular communication could affect the
agency's decision on the merits. In doubtful cases the agency official
should treat the communication as ex parte SO as to protect the integ-
rity of the decisionmaking process.
Paragraph (2) is the inverse of paragraph (1). 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 person. It embodies
the same standards as paragraph (1).
Paragraph (3) states that if an ex parte communication is made or
received by an agency official, he must place on the proceeding's public
record: (A), any illegal written communication, (B), a memorandum
stating the substance of any illegal oral communication, and (C), any
oral or written 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 eliminated. Agency officials who make an ex parte contact
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
requiring by regulation that in certain cases actual notice of the ex
parte communication be provided all parties.
Paragraph (4) states that the officer presiding over the agency hear-
ings in the proceedings 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 other-
wise adversely affected because of the violation. This provision
accompanies section 202 (d), which authorizes an agency to con-
sider a violation of this section as grounds for ruling against
a party on the merits. Paragraph (4) insures that the record of the
proceeding contains adequate information about the violation. The
presiding officer need not require a party committing an ex parte con-
tact 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
38
subsection (d), 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 be required where, among
other factors, there is a reasonable likelihood that the illegal contact
will be shown to have been made knowingly, but not where the viola-
tion was clearly inadvertent.
Paragraph (5) requires that the prohibitions against ex parte com-
munications 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.
Section 202(b). This subsection is only a conforming amendment.
It deletes from the Administrative Procedure Act the limited pro-
vision in section 554 (d) now governing ex parte communications. This
part of the present law is no longer necessary upon adoption of section
202(a).
Section 202 This subsection 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 permit 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 relevant to the proceedings. It includes, but is not limited to,
the transcript of the proceedings, material that has been accepted as
evidence in the proceeding, and the public file of related matters not
accepted as evidence 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. How-
ever, a party who wrote the same letter and sent it only to a commis-
sioner, would have committed a violation of the section even if the com-
missioner subsequently placed the letter in the public record.
Section 202(d). This subsection amends section 556 (d) of title 5,
so as to authorize an agency to render a decision adverse to a party
violating the prohibition against ex parte communications. It is in-
tended that this provision apply to both formal parties, and to inter-
venors whose interests are equivalent to those of a party. This pos-
sible 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 decision must be "consistent with the
interests of justice and the policy of the underlying statutes." For
39
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.
The subsection specifies that an agency may rule against a party for
making an ex parte communication only when the party made the
illegal contact knowingly. An inadvertent ex parte contact must still
be remedied by placing it on the public record. If the agency believes
that such an unintentional ex parte contact has irrevocably tainted the
proceeding, it may require the parties to make a new record. However,
the committee concluded that an agency should not definitively rule
against a party simply because of an inadvertent violation.
It is expected that an agency will rule against a party under this
subsection only in rare instances. However, the committee felt it very
important that an agency have this option available where the circum-
stances justify it, and where the agency must emphasize the seriousness
with which it views violations of the ex parte rules.
SECTION 203-EFFECT ON OTHER LAWS
Section 203 (a). This subsection provides that nothing in section 201
increases or decreases the public's access to documents or other records
under the Freedom of Information Act, 5 U.S.C. section 552. Access
to the actual documents or other written matter discussed or referred
to at a meeting subject to section 201 will continue to be governed, as
before, by the Freedom of Information Act.
The availability of transcripts or electronic recordings required by
section 201 (e) are exempted from this general rule. Section 201 (e) im-
poses a separate responsibility on an agency to keep verbatim records
and to make them available to the public on its own initiative unless
they concern matters falling within subsection (b) of section 201. If
an agency properly withholds the transcripts or electronic recordings
under section 201 (e), it need not disclose the material pursuant to a
Freedom of Information Act request, even though the nature of the
information is such that it would otherwise have to be disclosed under
that act.
Except to the extent section 201 (e) is inconsistent, the other provi-
sions of the Freedom of Information Act will continue to apply to the
transcripts or electronic recordings of meetings, and to any request
made under the Freedom of Information Act for access to such records.
Thus, the transcripts or electronic recordings must be indexed in ac-
cordance with the Freedom of Information Act and publicly disclosed
except to the extent section 201 (b) would apply to such information.
An agency response to a request under the Freedom of Information
Act for a transcript or electronic recording of a meeting would be
subject to the time limits for agency action established by that act.
A member of the public may invoke the enforcement provisions of
that act to insure that agency treatment of the transcripts or elec-
tronic recordings comply with its provisions.
40
Section 203 (a) also provides that the storage of transcripts or elec-
tronic recordings required by section 201 (e) are not subject to the
Federal Records Act, chapter 33 of title 44, United States Code. Such
material need not be kept beyond the period specified in section 201 (e).
The committee expects, however, that in accordance with the prin-
ciples established in the Federal Records Act, the agency will choose to
permanently retain transcripts or electronic recordings of meetings of
special interest. This subsection also specifies that nothing in title II
authorizes the withholding of any information from Congress.
Section 203 (b). This subsection states that section 201 may not be
used to deny requests by an individual for information under the
Privacy Act, section 552a of title 5, United States Code, including
information which might be contained in transcripts or electronic
recordings of properly closed meetings. The principles of the Privacy
Act govern whether or not an agency may withhold information from
the public in general. The applicability of the Privacy Act should in
no way be limited by enactment of this bill.
SECTION 204-EFFECTIVE DATE
This section provides that title II will become effective 180 days after
enactment. The provisions of 201 (f), requiring the promulgation of
regulations within 180 days from enactment, become effective immedi-
ately. This will assure that agencies will have promulgated the neces-
sary regulations, and have established the necessary procedures, to
allow complete compliance with section 201 once it does become ef-
fective. The 180-day period will also give the agencies an oppor-
tunity to review their regulations governing ex parte contacts and to
revise them in accordance with section 202 of the bill.
ESTIMATED Cost OF THE LEGISLATION
It is estimated that title I, opening meetings of congressional com-
mittees, and section 202 of title II, regulating ex parte contacts in
formal agency procedings, will impose no additional cost.
While it is difficult to estimate the probable cost of section 201, it is
anticipated that most of the added cost will be for additional clerical
and administrative work required by the section. The committee esti-
mates that this additional cost will be minimal.
Open meetings will require no tape recorders, no transcripts and
no editing of tapes. The only cost to an agency of an open meeting will
be the very small cost of providing the necessary public announcement.
An agency closing a meeting will have the additional cost of making
a transcript of the proceeding, or the cost of making an electronic
recording. The estimated cost of section 201 will therefore depend on
the number of meetings closed to the public. Since most of the agency
meetings should be open to the public. the committee expects that
the total cost of transcripts for closed meetings will be relatively
minor. The cost of the verbatim record will be further reduced if an
agencv relies on an electronic recording. The cost of electronic equip-
ment has been estimated to be only a few thousand dollars per agency.
The cost, of providing copies of the transcripts or tapes to the public
will be borne by the member of the public requesting the copy.
41
In a few cases, section 201 may require an agency to hire one addi-
tional employee to handle the added cherical and administrative work.
ROLLCALL VOTE IN COMMITTEE
In compliance with section 133 of the Legislative Reorganization
Act of 1946, as amended, the rollcall vote taken during committee
consideration of this legislation is as follows:
Final Passage: Ordered Reported 8 yeas-0 nays.
Yeas:
Chiles
Nunn
Glenn
Ribicoff
Percy
Javits
Roth
Brock
(Proxy)
Jackson
Muskie
Metcalf
Weicker
Nays:
CHANGES IN EXISTING LAW
In compliance with subsection 4 of rule XXIX of the Standing
Rules of the Senate, 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, and exist-
ing law in which no change is proposed is shown in roman)
:
(2 U.S.C. 72a note)
LEGISLATIVE REORGANIZATION ACT OF 1946 AS
AMENDED THROUGH MARCH 7, 1975
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TABLE OF CONTENTS
TITLE 1-CHANGES IN RULES OF SENATE AND HOUSE
Sec. 101.
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PART 3--PROVISIONS APPLICABLE TO BOTH HOUSES
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Sec. 133B.
***
Sec. 133C. Open Senate committee meetings.
Sec. 133D. Open conference committee meetings.
Sec. 133E. Open joint committee meetings.
42
TITLE I-CHANGES IN RULES OF SENATE AND
HOUSE
RULE-MAKING POWER OF THE SENATE AND HOUSE
SEC. 101.
*
COMMITTEE PROCEDURE
(2 U.S.C. 190a)
SEC. 133. (a)
(b) [Meetings for the transaction of business of each standing com-
mittee of the Senate, other than for the conduct of hearings, shall be
open to the public except during executive sessions for marking up
bills or for voting or when the committee by majority vote orders an
executive session." Each such committee shall keep a complete record
of all committee action. Such record shall include a record of the votes
on any question on which a record vote is demanded. The results
of rollcall votes taken in any meeting of any such standing committee
of the Senate upon any measure, or any amendment. thereto, shall be
announced in the committee report on that measure unless previously
announced by the committee, and such announcement shall include
a tabulation of the votes cast in favor of and the votes cast in opposi-
tion to each such measure and amendment by each member of the com-
mittee who was present at that meeting.
*
SENATE COMMITTEE RULES
(2 U.S.C. 190a-2)
SEC. 133B.
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OPEN SENATE COMMITTEE MEETINGS
SEC. 133C. Each meeting of a standing, select, or special committee
of the Senate, or any subcommittee thereof, shall be open to the public,
except that a portion or portions of any such meeting may be closed
to the public if the committee or subcommittee, as the case may be,
determines by record vote of a majority of the members of the com-
mittee or subcommittee present that the matters to be discussed at such
portion or portions-
(1) will disclose matters necessary to be kept secret in the in-
terests of national defense or the foreign policy of the United
States;
(2) will relate solely to matters of committee staff personnel
or internal staff management or procedure;
(3) will tend to charge an individual with crime or miscon-
duct, to disgrace or injure the professional standing of an indi-
vidual, or otherwise to expose an individual to public contempt
or obloquy, or will represent a clearly unwarranted invasion of
the privacy of an individual;
43
(4) will disclose the identity of any informer or law enforce-
ment agent or will disclose any information relating to the in-
vestigation or prosecution of any violation of law that is required
to be kept secret in the interests of effective law enforcement; or
(5) will disclose information relating to the trade secrets or
financial or commercial information pertaining specifically to a
given person if-
(A) an Act of Congress requires the information to be
kept confidential by Government officers and employees; or
(B) the information has been obtained by the Government
on a confidential basis, and is required to be kept secret in
order to prevent undue injury to the competitive position of
such person.
This section shall not apply to meetings to conduct hearings.
OPEN CONFERENCE COMMITTEE MEETINGS
SEC. 133D. Each conference committee between the Senate and the
House of Representatives shall be open to a clearly unwarranted inva-
sion of the privacy of an individual;
(D) will disclose the identity of any informer or law enforcement
agent or will disclose any information relating to the investigation or
prosecution of any violation of law that is required to be kept secret
in the interests of effective law enforcement; or
(E) will disclose information relating to the trade secrets or finan-
cial or commercial information pertaining specifically to a given
person if-
(i) an Act of Congress requires the information to be kept con-
fidential by Government officers and employees; or
(ii) the information has been obtained by the Government on a
confidential basis, and is required to be kept secret in order to
prevent undue injury to the competitive position of such person.
This clause shall not apply to meetings to conduct hearings.
OPEN JOINT COMMITTEE MEETINGS
SEC. 133E. Each meeting of a joint committee of the Senate and
House of Representatives, or any subcommittee thereof, shall be open
to the public, except that a portion or portions of any such meeting
may be closed to the public if the committee or subcommittee, as the
case may be, determines by record vote of a majority of the members of
the committee or subcommittee present that the matters to be discussed
or the testimony to be taken at such portion or portions-
(1) will disclose matters necessary to be kept secret in the
interests of national defense or the foreign policy of the United
States;
(2) will relate solely to matters of committee staff personnel or
internal staff management or procedure;
(3) will tend to charge an individual with crime or misconduct,
to disgrace or injure the professional standing of an individual, or
otherwise to expose an individual to public contempt or obloquy.
or will represent a clearly unwarranted invasion of the privacy of
an individual;
44
(4) will disclose the identity of any informer or law enforce-
ment agent or will disclose any information relating to the in-
vestigation or prosecution of any violation of law that is required
to be kept secret in the interests of effective law enforcement; or
(5) will disclose information relating to the trade secrets or
financial or commercial information pertaining specifically to a
given person if-
(A) an Act of Congress requires the information to be kept
confidential by Government officers and employees; or
(B) the information has been obtained by the Government
on a confidential basis, and is required to be kept secret in
order to prevent undue injury to the competitive position of
such person.
This section shall not apply to meetings to conduct hearings.
CHAPTER 5, TITLE 5, U.S. CODE
§ 551. Definitions.
For the purpose of this subchapter-
(1)
*
*
*
*
*
*
(12) "agency proceeding" 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.] act; and
(14) "ex parte communication" means an oral or written com-
munication not on the public record with respect to which reasonable
prior notice to all parties is not given.
*
*
*
*
*
§ 554. Adjudications.
(a)
***
*
*
*
*
(d) The employee who presides at the reception of evidence pursuant
to section 556 of this title shall make the recommended decision or
initial decision required by section 557 of this title, unless he becomes
unavailable to the agency. [Except to the extent required for the dis-
position of ex parte matters as authorized by law, such an employee
may not-
[(1) consult a person or party on a fact in issue, unless on
notice and opportunity for all parties to participate; or
[(2) be responsible to or subject to the supervision or direction
of an employee or agent engaged in the performance of investiga-
tive or prosecuting functions for an agency.]
Such employee may not be responsible to or subject to the supervision
or direction of an employee or agent engaged in the performance of
investigative or prosecuting functions for an agency.
45
§ 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 evi-
dence may be received, but the agency as a matter of policy shall pro-
vide for the exclusion of irrelevant, immaterial, or unduly repetitious
evidence. 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 party who has know-
ingly committed such violation or knowingly caused such violation
to occur. A party is entitled to present his case or defense by oral or
documentary 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; submis-
sions by parties; contents of decisions; record.
(a)
*
*
(d) 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-
(1) no interested person outside the agency shall make or know-
ingly cause to be made to any member of the body comprising the
agency, administrative law judge, or other employee who is or
may reasonably be expected to be involved in the decisional proc-
ess of the proceeding, an ex parte communication relevant to the
merits of the proceeding;
(2) no member of the body comprising an agency, adminis-
trative law judge, or other employee who is or may reasonably be
expected to be involved in the decisional process of the proceeding,
shall make or knowingly cause to be made to an interested person
outside the agency an ex parte communication relevant to the
merits of the proceeding;
(3) 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 proceed-
ing who receives. or who makes, a communication in violation of
this subsection, shall place on the public record of the proceeding
(A) written communications transmitted in violation of
this subsection;
GERALD
46
(B) memorandums stating the substance of all oral com-
munications occurring in violation of this subsection; and
(C) responses to the materials described in subparagraphs
(A) and (B) of this subsection;
(4) upon receipt of a communication knowingly made by a
party, or which was knowingly caused to be made by a party in
violation of this subsection; the agency, administrative law judge,
or other employee presiding at the hearing many, to the extent
consistent with the interests of justice and the policy of the under-
lying statutes, require the person or party to show cause why his
claim or interest in the proceeding should not be dismissed,
denied, disregarded, or otherwise adversely affected by virtue of
such violation;
(5) the prohibitions of this subsection shall apply at such time
as the agency may designate, but in no case shall they apply later
than the time at which a proceeding is noticed for hearing unless
the person responsible for the communication has knowledge that
it will be noticed, in which case the prohibitions shall apply at the
time of his acquisition of such knowledge.
STANDING RULES FOR CONDUCTING BUSINESS IN THE SENATE OF THE
UNITED STATES
RULE XXV
STANDING COMMITTEES
*
*
*
*
*
7(a)
*
*
[(b) Meetings for the transaction of business of each standing com-
mittee of the Senate, other than for the conduct of hearings (which are
provided for in section 112(a) of the Legislative Reorganization Act
of 1970), shall be open to the public except during closed sessions for
marketing up bills or for voting or when the committee by majority
vote orders a closed session: Provided, That any such closed session
may be open to the public if the committee by rule or by majority vote
SO determines.]
RULES OF THE HOUSE OF REPRESENTATIVES
FIRST SESSION, NINETY-FOURTH CONGRESS
*
*
*
*
*
*
*
RULE XI
RULES OF PROCEDURE FOR COMMITTEES
*
*
*
*
*
47
Committee Rules
2. (a)
Open Meetings and Hearings
[(g) (1) Each meeting for the transaction of business, including
the markup of legislation, of each standing committee or subcommittee
thereof shall be open to the public except when the committee or sub-
committee, in open session and with a quorum present, determines by
rollcall vote that all or part of the remainder of the meeting on that
day shall be closed to the public. Provided, however, That no person
other than members of the committee and such congressional staff and
such departmental representatives as they may authorize shall be
present at any business or markup session which has been closed to the
public. This paragraph does not apply to open committee hearings
which are provided for by clause 4(a) (3) of Rule X or by subpara-
graph (2) of this paragraph, or to any meeting that relates solely to
internal budget or personnel matters.]
(g) (1) Each meeting of a standing, select, or special committee or
subcommittee, shall be open to the public, except that a portion or
portions of any such meeting may be closed to the public if the com-
mittee or subcommittee, as the case may be, determines by record vote
of a majority of the members of the committee or subcommittee present
that the matters to be discussed at such portion or portions-
(A) will disclose-matters necessary to be kept secret in the
interests of national defense or the foreign policy of the United
States;
(B) will relate solely to matters of committee staff personnel
or internal staff management or procedure;
(C) will tend to charge an individual with crime or miscon-
duct, to disgrace or injure the professional standing of an in-
dividual, or otherwise to expose an individual to public contempt
or obloquy, or will represent a clearly unwarranted invasion of
the privacy of an individual;
(D) will disclose the identity of any informer or law enforce-
ment agent or will disclose any information relating to the in-
vestigation or prosecution of any violation of law that is required
to be kept secret in the interests of effective law enforcement; or
(E) will disclose information relating to the trade secrets or
financial or commercial information pertaining specifically to a
given person if-
(i) an Act of Congress requires the information to be kept
confidential by Government officers and employees; or
(ii) the information has been obtained by the Government
on a confidential basis, and is required to be kept secret in
order to prevent undue injury to the competitive position of
such person.
This clause shall not apply to meetings to conduct hearings.
APPENDIX
50
SUMMARY OF STATE OPEN MEETINGS LAWS 1
Date
Includes
Provides
Provides
Opens
of
statement
for open
for open
state
latest
of public
legisla-
legislative
agenties
action
policy
ture
committees
Alabama
1915
yes
Alaska
1972
yes
yes
yes
yes
Arizona
1974
yes
yes
yes
yes
Arkansas
1967
yes
yes
California
1974
yes
yes
Colorado
1974
yes
yes
yes
yes
Connecticut
1971
yes
Delaware
1955
yes
Florida
1967
yes
Georgia
1972
yes
yes
yes
Hawaii
1959
yes
Idaho
1961
yes
Illinois
1973
yes
yes
Indiana
1971
yes
yes
Iowa
1967
yes
Kansas
1972
yes
yes
yes
yes
Kentucky
1974
yes
yes
yes
yes
Louisiana
1972
yes
Maine
1973
yes
yes
yes
yes
Maryland
1954
yes
Massachusetts
1970
yes
Michigan
1968
yes
yes
yes
Minnesota
1973
yes
yes
yes
Mississippi
1975
Missouri
1973
yes
yes
yes
Montana
1963
yes
yes
yes
yes
Nebraska
1972
yes
yes
Nevada
1960
yes
yes
New Hampshire
1973
yes
yes
yes
New Jersey
1974
yes
yes
yes
New Mexico
1974
yes
yes
New York
no law
North Carolina
1971
yes
yes
yes
yes
North Dakota
1957
yes
Ohio
1961
yes
yes
Oklahoma
1959
yes
Oregon
1973
yes
yes
yes
yes
Pennsylvania
1959
yes
Rhode Island
1974
yes
South Carolina
1972
yes
yes
yes
yes
South Dakota
1965
yes
yes
yes
Tennessee
1974
yes
yes
yes
yes
Texas
1973
yes
yes
yes
Utah
1953
yes
yes
yes
yes
Vermont
1973
yes
yes
yes
yes
Virginia
1974
yes
Washington
1973
yes
yes
West Virginia
1975
Wisconsin
1959
yes
yes
yes
Wyoming
1973
yes
yes
1
Compiled by Dr. John B. Adams for the Freedom of Information
Foundation, Columbia, Missouri
51
Opens
Opens
Opens
Forbids
Legal
Actions in
Provides
county &
2
county
city
closed
recourse
meetings in
penalties
"Score"
local
boards
councils
exec.
to halt
violation
for
agencies
sessions
secrecy
void
violations
yes
yes
yes
yes
5
yes
yes
yes
yes
8
yes
yes
yes
yes
yes
yes
10
yes
yes
yes
yes
yes
yes
8
yes
yes
yes
yes
yes
7
yes
yes
yes
yes
yes
yes
10
yes
yes
yes
4
yes
yes
yes
4
yes
yes
yes
yes
yes
yes
yes
B
yes
yes
yes
yes
yes
yes
9
yes
yes
yes
4
yes
yes
yes
4
yes
yes
yes
yes
yes
7
yes
yes
4
yes
yes
yes
yes
yes
6
yes
yes
yes
yes
yes
9
yes
yes
yes
yes
yes
yes
10
yes
yes
yes
yes
5
yes
yes
yes
yes
yes
9
1
yes
yes
yes
yes
5
yes
yes
yes
yes
7
yes
yes
yes
yes
yes
yes
9
unscored
yes
yes
yes
yes
7
yes
yes
yes
7
yes
yes
yes
yes
yes
7
yes
yes
yes
yes
6
yes
yes
yes
yes
7
yes
yes
yes
6
yes
yes
yes
yes
yes
yes
8
no law
yes
yes
yes
yes
8
yes
yes
yes
yes
5
yes
yes
yes
5
yes
yes
yes
yes
yes
6
yes
yes
yes
yes
8
yes
yes
yes
yes
5
1
yes
yes
yes
yes
8
yes
yes
yes
6
yes
yes
yes
yes
yes
yes
yes
11
yes
yes
yes
yes
7
yes
yes
yes
yes
7
yes
yes
yes
yes
8
yes
yes
yes
yes
5
yes
yes
yes
yes
yes
7
inscored
yes
yes
yes
yes
7
yes
yes
yes
yes
6
2 "Score" means the total number of "yes" answers, It provides a rough index
of the law's comprehensiveness,
52
STATE OPEN MEETINGS STATUTES
Alabama-Title 14, Ch. 70 § 393 (1915) Nebraska-84-1401 (1972)
Alaska-$ 44.62.310 (1972)
Nevada-241.010 (1960)
Arizona-$ 38-431 (1974)
New Hampshire-Title VI, Ch. 91-A
Arkansas-$ 12-2801 (1967)
(1973)
California-$ 11120 Gov. Code (1974)
New Jersey-10: 4-1 (1974)
Colorado-3-33-1 (1974)
New Mexico-Ch. 91 of 1974 session
Connecticut-$1-21 (1971)
New York-(No Law)
Delaware-29 § 5109 (1955)
North Carolina-143-318.1 (1971)
Florida-$ 286.011 (1967)
North Dakota-44-04-19 (1957)
Georgia-$ 40-3301 (1972)
Ohio-121.22 (1961)
Hawaii-$ 92-1 (1959)
Oklahoma-25 § 201 (1959)
Idaho-$ 59-1024 (1961)
Oregon-Ch. 172 of 1973 session
Illinois-Ch. 102, § 41 (1973)
Pennsylvania-(1974 Law)
Indiana-§ 57-601 (1971)
Rhode Island-(1974)
Iowa-Ch. 28A (1967)
South Carolina-Article 2.2, $ 1-20
Kansas-$ 75-4317 (1972)
(1972)
Kentucky-HB 100-1974 session
South Dakota-1-25-1 (1965)
Louisiana-Title 42 § 6 (1972)
Tennessee-Ch. No. 442 of 1974 session
Maine-Title 1, Ch. 13, § 401 (1973)
Texas-17 § 6252 (1973)
Maryland-Art. 41, $ 14 (1954)
Utah-52-4-1 (1953)
Massachusetts-Ch. 30A, § 11a (1970)
Vermont-1 U.S.A. 312 (1973)
Michigan-4.1800 (1968)
Virginia-2.1-340 (1974)
Minnesota-471.705 (1973)
Washington-42.30.010 (1973)
Mississippi-(1975 Law)
West Virginia-(1975 Law)
Missouri-610.010 (1973)
Wisconsin-SB 462 of 1974 session
Montana-Art. II of 1972 const. 82-3402
Wyoming-9-692.10 (1973)
(1963)
TEXT OF S. 5 AS REPORTED
A BILL To PROVIDE THAT MEETINGS OF GOVERNMENT AGENCIES AND OF CONGRES-
SIONAL COMMITTEES SHALL BE OPEN TO THE PUBLIC, AND FOR OTHER PURPOSES
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.-This Act may be cited as the "Govern-
ment in the Sunshine Act."
SEC. 2. DECLARATION OF POLICY.-It is hereby declared to be the
policy of the United States that the public is entitled to the fullest
practicable information regarding the decisionmaking processes of the
Federal Government. It is the purpose of this Act to provide the
public with such information, while protecting the rights of individ-
uals and the ability of the Government to carry out its responsibilities.
SEC. 3. DEPINITIONS.-For purposes of this Act the term, "person"
includes an individual, partnership, corporation, association, or public
or private organization other than an agency.
TITLE I-CONGRESSIONAL PROCEDURES
SEC. 101. SENATE COMMITTEE MEETINGS.-(a) The Legislative Re-
organization Act of 1946 is amended-
(1) by striking out the first sentence of section 133 (b) ;
(2) by adding after section 133B the following:
"OPEN SENATE COMMITTEE MEETINGS
"SEC. 133C. Each meeting of a standing, select, or special committee
of the Senate, or any subcommittee thereof, shall be open to the public,
except that a portion or portions of any such meeting may be closed
to the public if the committee or subcommittee, as the case may be,
determines by record vote of a majority of the members of the com-
mittee or subcommittee present that the matters to be discussed at such
portion or portions-
"(1) will disclose matters necessary to be kept secret in the
interests of national defense or the foreign policy of the United
States;
(2) will relate solely to matters of committee staff personnel or
internal staff management or procedure;
(3) will tend to charge an individual with crime or miscon-
duct, to disgrace or injure the professional standing of an indi-
vidual, or otherwise to expose an individual to public contempt or
obloquy, or will represent a clearly unwarranted invasion of the
privacy of an individual;
'(4) will disclose the identity of any informer or law enforce-
ment agent or will disclose any information relating to the investi-
gation or prosecution of any violation of law that is required to be
kept secret in the interests of effective law enforcement; or
(53)
54
(5) will disclose information relating to the trade secrets of
financial or commercial information pertaining specifically to a
given person if-
(A) an Act of Congress requires the information to be
kept confidential by Government officers and employees; or
" (B) the information has been obtained by the Government
on a confidential basis, and is required to be kept secret in
order to prevent undue injury to the competitive position of
such person.
This section shall not apply to meetings to conduct hearings.".
(b) Paragraph 7 (b) of Rule XXV of the Standing Rules of the
Senate is repealed.
(c) Title I of the table of contents of the Legislative Reorganization
Act of 1946 is amended by inserting immediately below item 133B the
following:
"133C. Open Senate committee meetings.".
SEC. 102. House of Representatives committee meetings.-Clause 2
(g) (1) of Rule XI of the Rules of the House of Representatives is
amended to read as follows:
(g) (1) Each meeting of a standing, select, or special committee or
subcommittee, shall be open to the public, except that a portion or
portions of any such meeting may be closed to the public if the com-
mittee or subcommittee, as the case may be, determines by record vote
of a majority of the members of the committee or subcommittee pres-
ent that the matters to be discussed at such portion or portions—
(A) will disclose matters necessary to be kept secret in the
interests of national defense or the foreign policy of the United
States;
(B) will relate solely to matters of committee staff personnel
or internal staff management or procedure;
(C) will tend to charge an individual with crime or miscon-
duct, to disgrace or injure the professional standing of an indi-
vidual, or otherwise to expose an individual to public contempt or
obloquy, or will represent a clearly unwarranted invasion of the
privacy of an individual;
'(D) will disclose the identity of any informer or law en-
forcement agent or will disclose any information relating to the
investigation or prosecution of any violation of law that is re-
quired to be kept secret in the interests of effective law enforce-
ment; or
(E) will disclose information relating to the trade secrets
or financial or commercial information pertaining specifically to a
given person if-
" (i) an Act of Congress requires the information to be
kept confidential by Government officers and employees; or
" (ii) the information has been obtained by the Govern-
ment on a confidential basis, and is required to be kept secret
in order to prevent undue injury to the competitive position
of such person.
This clause shall not apply to meetings to conduct hearings.".
SEC. 103. (a) CONFERENCE Committes.-The Legislative Reorga-
nization Act of 1946 is amended by inserting after section 133C, as
added by section 101 (a) of this Act, the following new section:
55
"OPEN CONFERENCE COMMITTEE MEETINGS
"SEC. 133D. Each conference committee between the Senate and the
House of Representatives shall be open to the public except when the
managers of either the Senate or the House of Representatives in open
session determine, by a rollcall vote of a majority of those managers
present, that all or part of the remainder of the meeting on the day of
the vote shall be closed to the public.".
(b) Title I of the table of contents of the Legislative Reorganization
Act of 1946 is amended by inserting immediately below item 133C, as
added by section 101 (c) of this Act, the following:
"133D. Open conference committee meetings.".
SEC. 104. (a) JOINT COMMITTEES.-The Legislative Reorganization
Act of 1946 is amended by inserting after section 133D, as added by
section 102 (a) of this Act, the following new section:
"OPEN JOINT COMMITTEE MEETINGS
"Sec. 133E. Each meeting of a joint committee of the Senate and
House of Representatives, or any subcommittee thereof, shall be open
to the public, except that a portion or portions of any such meeting
may be closed to the public if the committee or subcommittee, as the
case may be, determines by record vote of a majority of the members of
the committee or subcommittee present that the matters to be discussed
or the testimony to be taken at such portion or portions—
"(1) will disclose matters necessary to be kept secret in the
interests of national defense or the foreign policy of the United
States;
'(2) will relate solely to matters of committee staff personnel
or internal staff management or procedure;
(3) will tend to charge an individual with crime or miscon-
duct, to disgrace or injure the professional standing of an in-
dividual, or otherwise to expose an individual to public contempt
or obloquy, or will represent a clearly unwarranted invasion of
the privacy of an individual;
"(4) will disclose the identity of any informer or law enforce-
ment agent or will disclose any information relating to the in-
vestigation or prosecution of any violation of law that is required
to be kept secret in the interests of effective law enforcement; or
(5) will disclose information relating to the trade secrets or
financial or commercial information pertaining specifically to a
given person if-
" (A) an Act of Congress requires the information to be
kept confidential by Government officers and employees; or
" (B) the information has been obtained by the Govern-
ment on a confidential basis, and is required to be kept
secret in order to prevent undue injury to the competitive
position of such person.
This section shall not apply to meetings to conduct hearings.".
(b) Titile I of the table of contents of the Legislative Reorganiza-
tion Act of 1946 is amended bv inserting immediately below item
133D, as added by section 103 (b) of this Act, the following:
"133E. Open joint committee meetings.".
56
SEC. 105. EXERCISE OF RULEMAKING Powers.-The provisions of this
title are enacted by the Congress-
(1) as an exercise of the rulemaking power of the Senate and
the House of Representatives, respectively, and as such they shall
be considered as part of the rules of each House, respectively, or
of that House to which they specifically apply, and such rules
shall supersede other rules only to the extent that they are in-
consistent therewith; and
(2) with full recognition of the constitutional right of either
House to change such rules (so far as relating to such House)
at any time, in the same manner, and to the same extent as in the
case of any other rule of such House.
TITLE II-AGENCY PROCEDURES
SEC. 201. (a) This section applies, according to the provisions there-
of, to the Federal Election Commission and to any agency, as defined
in section 551 (1) of title 5, United States Code, where the collegial body
comprising the agency consists of two or more individual members, at
least a majority of whom are appointed to such position by the Presi-
dent with the advice and consent of the Senate. Except as provided in
subsection (b), all meetings of such collegial body, or of a subdivision
thereof authorized to take action on behalf of the agency, shall be
open to the public. For purposes of this section, a meeting means the
deliberations of at least the number of individual agency members re-
quired to take action on behalf of the agency where such deliberations
concern the joint conduct or disposition of official agency business.
(b) Except where the agency finds that the public interest requires
otherwise, (1) subsection (a) shall not apply to any agency meeting,
or any portion of an agency meeting, or to any meeting, or any portion
of a meeting, of a subdivision thereof authorized to take action on
behalf of the agency, and, (2) the requirements of subsections (c) and
(d) shall not apply to any information pertaining to such meeting
otherwise required by this section to be disclosed to the public, where
the agency, or the subdivision thereof conducting the meeting, prop-
erly determines that such portion or portions of its meeting, or such
information, can be reasonably expected 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) are in fact properly
classified pursuant to such Executive order;
(2) relate solely to the agency's own internal personnel rules
and practices;
(3) disclose information of a personal nature where disclosure
would constitute a clearly unwarranted invasion of personal
privacy;
(4) involve accusing any person of a crime, or formally censur-
ing any person;
(5) disclose information contained in investigatory records
compiled for law enforcement purposes, but only to the extent that
the disclosure would (A) interfere with enforcement proceedings,
(B) deprive a person of a right to a fair trial or an impartial
ajudication, (C) constitute an unwarranted invasion of personal
57
privacy, (D) disclose the identity of a confidential source, (E)
in the case of a record compiled by a criminal law enforcement
authority in the course of a criminal investigation, or by an agency
conducting a lawful national security intelligence investigation,
disclose confidential information furnished only by the confiden-
tial source, (F) disclose investigative techniques and procedures,
or (G) endanger the life or physical safety of law enforcement
personnel;
(6) disclose trade secrets, or financial or commercial informa-
tion obtained from any person, where such trade secrets or other
information could not be obtained by the agency without a pledge
of confidentiality, or where such information must be withheld
from the public in order to prevent substantial injury to the com-
petitive position of the person to whom such information relates;
(7) disclose information which must be withheld from the pub-
lic in order to avoid premature disclosure of an action or a pro-
posed action by-
(A) an agency which regulates currencies, securities, com-
modities, or financial institutions where such disclosure would
(i) lead to serious financial speculation in currencies, securi-
ties, or commodities, or (ii) seriously endanger the stability of
any financial institution;
(B) any agency where such disclosure would seriously
frustrate implementation of the proposed agency action, or
private action contingent thereon; or
(C) any agency relating to the purchase by such agency of
real property.
This paragraph shall not apply in any instance where the agency
has already disclosed to the public the content or nature of its pro-
posed action, or where the agency is required by law to make such
disclosure on its own initiative prior to taking final agency action
on such proposal;
(8) disclose information contained in or related 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) specifically concern the agency's participation in a civil
action in Federal or State court, or the initiation, conduct, or dis-
position by the agency of a particular case of formal agency ad-
judication pursuant to the procedures in section 554 of title 5,
United States Code, or otherwise involving a determination on the
record after opportunity for a hearing; or
(10) disclose information required to be withheld from the
public by any other statute establishing particular criteria or re-
ferring to particular types of information.
(c) (1) Action under subsection (b) shall be taken only when a
majority of the entire membership of the agency, or of the subdivision
thereof authorized to conduct the meeting on behalf of the agency,
votes to take such action. A separate vote of the agency members, or
the members of a subdivision thereof, shall be taken with respect to
each agency meeting a portion or portions of which are proposed to
be closed to the public pursuant to subsection (b), or with respect to
any information which is proposed to be withheld under subsection
58
(b). A single vote may be taken with respect to a series of meetings, a
portion or portions of which are proposed to be closed to the public, or
with respect to any information concerning such series of meetings, SO
long as each meeting in such series involves the same particular mat-
ters. and is scheduled to be held no more than thirty days after the
initial meeting in such series. The vote of each agency member par-
ticipating in such vote shall be recorded and no proxies shall be al-
lowed. Whenever any person whose interests may be directly affected
by a meeting requests that the agency close a portion or portions of
the meeting to the public for any of the reasons referred to in para-
graphs (3), (4), or (5) of subsection (b), the agency shall vote wheth-
er to close such meeting, upon request of any one of its members.
Within one day of any vote taken pursuant to this paragraph the
agency shall make publicly available a written copy of such vote.
(2) If a meeting or portion thereof is closed to the public, the
agency shall, within one day of the vote taken pursuant to paragraph
(1) of this subsection, make publicly available a full written explana-
tion of its action closing the meeting, or portion thereof. together with
a list of all persons expected to attend the meeting, and their affiliation.
(3) Any agency, a majority of whose meetings will properly be
closed to the public, in whole or in part, pursuant to paragraphs (6),
(7) (A), (8), or (9) of subsection (b), or any combination thereof,
may provide by regulation for the closing of such meetings, or portions
of such meetings, so long as a majority of the members of the agency,
or of the subdivision thereof conducting the meeting, votes at the be-
ginning of such meeting, or portion thereof, to close the meeting, and
a copy of such vote is made available to the public. The provisions of
this subsection, and subsection (d), shall not apply to any meeting to
which such regulations apply: Provided, That the agency shall, except
to the extent that the provision of subsection (b) may apply, provide
the public with public announcement of the date, place. and subject
matter of the meeting at the earliest practicable opportunity.
(d) 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 open or closed to the public,
and the name and phone number of the official designated by the agency
to respond to requests for information about the meeting. Such an-
nouncement shall be made unless a majority of the members of the
agency, or of the members of the subdivision thereof conducting the
meeting, determines by a vote that agency business requires that such
meetings 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 earliest
practicable opportunity. The subject matter of a meeting, or the deter-
mination of the agency to open or close a meeting, or portion of a meet-
ing, to the public, may be changed following the public announcement
required by this paragraph if, (1) a majority of the entire membership
of the agency, or of the subdivision thereof conducting the meeting,
determines by a vote that agency business SO requires, and that no ear-
lier announcement of the change was possible, and (2) the agency pub-
licly announces such change at the earliest practicable opportunity.
Immediately following the public announcement required by this par-
59
agraph, notice of such announcement shall also be submitted for pub-
lication in the Federal Register.
(e) A complete transcript or electronic recording adequate to fully
record 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 meet-
ing, closed to the public pursuant to paragraph (9) of subsection (b).
The agency shall make promptly available to the public, in a place
easily accessible to the public, the complete transcript or electronic re-
cording of the discussion at such meeting of any item on the agenda, or
of the testimony of any witness received at such meeting, where no sig-
nificant portion of such discussion or testimony contains any informa-
tion specified in paragraphs (1) through (10) of subsection (b). Copies
of such transcript, or a transcription of such electronic recording dis-
closing the identity of each speaker, shall be furnished to any person
at the actual cost of duplication or transcription. 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 meeting, or a portion thereof, was held, whichever occurs
later.
(f) Each agency subject to the requirements of this section shall,
within one hundred and eighty days after the enactment of this Act,
following consultation with the Office of the Chairman of the Ad-
ministrative Conference of the United States and published notice in
the Federal Register of at least thirty days and opportunity for
written comment by any persons, promulgate regulations to implement
the requirements of subsections (a) through (e) of this section. Any
person may bring a proceeding in the United States District Court
for the District of Columbia to require an agency to promulgate such
regulations if such agency has not promulgated such regulations
within the time period specified herein. Any person may bring a pro-
ceeding in the United States Court of Appeals for the District of
Columbia to set aside agency regulations issued pursuant to this sub-
section that are not in accord with the requirements of subsections (a)
through (e) of this section, and to require the promulgation of regu-
lations that are in accord with such subsections.
(g) The district courts of the United States have jurisdiction to
enforce the requirement of subsections (a) through (e) of this sec-
tion by declaratory judgment, injunctive relief, or other relief as may
be appropriate. 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. Before bringing such action,
the plaintiff shall first notify the agency of his intent to do so, and
allow the agency a reasonable period of time, not to exceed ten days,
to correct any violation of this section, except that such reasonable
period of time shall not be held to exceed two working days where noti-
fication of such violation is made prior to a meeting which the agency
60
has voted to close. 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 de-
fendant shall serve his answer within twenty days after the service of
the complaint. 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
available to the public the transcript or electronic recording of any
portion of a meeting improperly closed to the public. Except to the
extent provided in subsection (h) of this section, nothing in this sec-
tion confers jurisdiction on any district court to set aside or invalidate
any agency action taken or discussed at an agency meeting out of
which-the violation of this section arose.
(h) Any Federal court otherwise authorized by law to review
agency action may, at the application of any person properly par-
ticipating in the proceeding pursuant to other applicable law, inquire
into violations by the agency of the requirements of this section, and
afford any such relief as it deems appropriate.
(i) 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 (f), (g), or (h) of this section. Costs may
be assessed against an individual member of an agency only in the
case where the court finds such agency member has intentially and
repeatedly violated this section, or against the plaintiff where the
court finds that the suit was initiated by the plaintiff for frivolous or
dilatory purposes. In the case of apportionment of costs against an
agency, the costs may be assessed by the court against the United
States.
(j) The agencies subject to the requirements of this section shall
annually report to Congress regarding their compliance with such re-
quirements, including a tabulation of the total number of agency meet-
ings 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.
SEC. 202. (a) Section 557 of title 5, United States Code, is amended
by adding at the end thereof the following new subsection:
"(d) 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-
"(1) no interested person outside the agency shall make or
knowingly cause to be made to any member of the body comprising
the agency, administrative law judge. or other employee who is or
may reasonably be expected to be involved in the decisional process
of the proceeding, an ex parte communication relevant to the
merits of the proceeding;
"(2) no member of the body comprising the agency, adminis-
trative law judge, or other employee who is or may reasonably
61
be expected to be involved in the decisional process of the pro-
ceeding, shall make or knowingly cause to be made to an inter-
ested person outside the agency an ex parte communication rele-
vant to the merits of the proceeding;
'(3) 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 proceed-
ing who receives, or who makes, a communication in violation of
this subsection, shall place on the public record of the proceeding:
"(A) written communications transmitted in violation of
this subsection;
'(B) memorandums stating the substance of all oral com-
munications occurring in violation of this subsection; and
" (C) responses to the materials described in subparagraphs
(A) and (B) of this subsection;
(4) upon receipt of a communication knowingly made by a
party, or which was knowingly caused to be made by a party
in violation of this subsection; the agency, administrative law
judge, or other employee presiding at the hearing may, to the ex-
tent consistent with the interests 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 otherwise adversely affected by virtue of
such violation;
(5) the prohibitions of this subsection shall apply at such time
as the agency may designate, but in no case shall they apply later
than the time at which a proceeding is noticed for hearing unless
the person responsible for the communication has knowledge that
it will be noticed, in which case the prohibitions shall apply at
the time of his acquisition of such knowledge.".
(b) The second sentence of section 554 (d) of title 5, United States
Code, is amended to read as follows: "Such employee may not be re-
sponsible to or subject to the supervision or direction of an employee
or agent engaged in the performance of investigative or prosecuting
functions for an agency.".
(c) Section 551 of title 5, United States Code, is amended—
(1) by striking out "and" at the end of paragraph (12) ;
(2) by striking out the "act." at the end of paragraph (13) and
inserting in lieu thereof "act; and"
(3) by adding at the end thereof the following new paragraph:
(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.".
(d) Section 556 (d) of title 5, United States Code, is amended by
inserting between the third and fourth sentences thereof the following
new sentence: "The agency may, to the extent consistent with the in-
terests of justice and the policy of the underlying statutes administered
by the agency, consider a violation of section 557 (d) of this title suffi-
cient grounds for a decision adverse to a party who has knowingly
committed such violation or knowingly caused such violation to
occur.".
SEC. 203. (a) Except as specifically provided by section 201, nothing
in section 201 confers any additional rights on any person, or limits
62
the present rights of any such person, to inspect or copy, under section
552 of title 5, United States Code, any documents or other written
material within the possession of any agency. In the case of any request
made pursuant to section 552 of title 5, United States Code, to copy or
inspect the transcripts or electronic recordings described in section
201 (e), the provisions of this Act shall govern whether such transcript
or electronic recordings shall be made available in accordance with such
request. The requirements of chapter 33, of title 44, United States
Code, shall not apply to the transcripts and electronic recordings de-
scribed in section 201 (e). This title does not authorize any information
to be withheld from Congress.
(b) Nothing in section 201 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 that individ-
ual under section 552a of title 5, United States Code.
SEC. 204. The provisions of this title shall become effective one
hundred and eighty days after the date on which this Act is enacted,
except that the provisions of section 201 requiring the issuance of regu-
lations 'to implement such section shall become effective upon enact-
ment.
Calendar No. 343
94TH CONGRESS
SENATE
REPORT
1st Session
No. 94-381
GOVERNMENT IN THE SUNSHINE ACT
SEPTEMBER 18 (legislative day, SEPTEMBER 12), 1975.-Ordered to be printed
Mr. CANNON, from the Committee on Rules and Administration and
on behalf of the Committee on the Judiciary, submitted the following
REPORT
[To accompany S. 5]
The Committee on Rules and Administration, to which was referred
title I of the bill (S. 5) to provide that meetings of Government agen-
cies and of congressional committees shall be open to the public, and
for other purposes, having considered the same, reports favorably
thereon with an additional amendment, and recommends that the bill
as further amended by the Committee on Rules and Administration do
pass.
The Committee on the Judiciary, to which was referred section 202
of Title II of the bill (S.5), has been unable to act thereon due to the
press of other legislative business, but agrees to report the bill with the
reservation of the right to file on the floor of the Senate proposed
amendments to this legislation at a later date.
S. 5 would provide that, except under certain specified circum-
stances, all meetings of multiheaded Government agencies and of con-
gressional committees would be open to the public.
This measure was reported by the Committee on Government Op-
erations on July 31, 1975, with an amendment in the nature of a
substitute. On August 1, 1975, by unanimous consent, the bill was
referred to the Committee on Rules and Administration for considera-
tion of title I only, with instructions to report back no later than
September 15. This reporting date was subsequently extended to Sep-
tember 19.
Title I, which is the subject of this Committee's consideration,
would-
(1) Amend the Legislative Reorganization Act of 1946 to open
to the public most meetings of Senate standing, select, and special
committees (including all subcommittees), as well as meetings of
joint committees and conference committees of the Congress;
(2) Repeal the present rule Senate on the subject (paragraph
7 (b) of Rule XXV) ; and
57-010
2
(3) Amend Rule XI of the Rules of the House of Representa-
tives to open to the public most meetings of House standing, select,
and special committees (including all subcommittees).
The Committee on Rules and Administration is reporting S. 5
with an additional amendment, the effect of which would be to strike
Title I from the bill. While the Committee generally agrees with the
concept of more openness in Government as expressed in S. 5, it be-
lieves that in respect to congressional committees such purpose would
more properly be achieved by direct amendment of the Standing Rules
of the Senate rather than by amendment of the Legislative Reorga-
nization Act of 1946. Consequently the Committee is reporting Senate
Resolution 9 with an amendment in the nature of a substitute for that
purpose. (For details of that proposal see the report of the Committee
on Rules and Administration to accompany S. Res. 9.)
The Committee on Rules and Administration has recommended that
in respect to congressional committees the purposes of S. 5 be accom-
plished by direct amendment of the Standing Rules, rather than by
amendment of the Legislative Reorganization Act of 1946, for the
following reasons:
Section 5 of Article I of the Constitution provides that "Each House
may determine the Rules of its Proceedings, * * In the Commit-
tee's judgment such a fundamental change in Senate procedure as
further opening of committee meetings should be accomplished by
simple resolution directly amending the Senate rules, thus obviating
the necessity of participation by the House of Representatives or the
President in a matter which is solely within the jurisdiction of the
Senate itself.
The Legislative Reorganization Act of 1970 enacted certain pro-
visions bearing on the procedure and organization of both Houses of
Congress. In many instances that Act effected changes in the Stand-
ing Rules of the House of Representatives, while it left comparable
or identical provisions relating to the Senate standing as provisions
of public law, and not as comparable changes in the Standing Rules
of the Senate. The Committee on Rules and Administration has under-
taken a review of all such provisions of the Legislative Reorganiza-
tion Acts (1946 and 1970) with the objective of ultimately incor-
porating all appropriate provisions into the Standing Rules them-
selves.
The Committee on Rules and Administration did not address itself
to the matter of open meetings of joint committees of Congress, believ-
ing that subject should await experience gained under the new proce-
dure in respect to standing committees, but by a vote of 7 to 1 it agreed
to table Senate Resolution 12, which would have opened up conference
committees. The vote to table Senate Resolution 12 was as follows:
YEAS-7
NAYS-1
Mr. Cannon
Mr. Hatfield
Mr. Pell 1
Mr. Scott
Mr. Byrd
Mr. Griffin
Mr. Allen
Mrs Williams 1
1 Proxy.
3
It should be noted that since the Committee on Rules and Adminis-
tration was directed by the Senate to confine its consideration only to
Title I of S. 5, the Committee is thereby precluded from reporting
the technical or conforming amendments in the other portions of S. 5
which would be required as a result of its recommended deletion of
Title I. Thus, should the recommendation of the Committee on Rules
and Administration be approved by the Senate, authority for making
such necessary conforming amendments should be included within that
approval.
ROLLCALL VOTE ON S. 5
On the motion by Mr. Robert C. Byrd that Title I of S. 5 be stricken
and the remainder of the bill be reported favorably, the Committee
voted as follows:
YEAS-7
NAYS-1
Mr. Cannon
Mr. Hatfield'
Mr. Pell 1
Mr. Scott
Mr. Byrd
Mr. Griffin
Mr. Allen
Mr. Williams 1
1 By proxy.
()
S.R. 381
94TH CONGRESS
}
HOUSE OF REPRESENTATIVES
REPT. 94-880
2d Session
Part I
GOVERNMENT IN THE SUNSHINE ACT
MARCH 8, 1976.-Ordered to be printed
Mr. BROOKS, from the Committee on Government Operations,
submitted the following
REPORT
together with
ADDITIONAL VIEWS
[To accompany H.R. 11656]
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.
AMENDMENTS
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".
EXPLANATION OF AMENDMENTS
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.
57-006 0
2
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 O. Robinson,
who testified before the Government Information and Individual
Rights Subcommittee on this legislation:
Chief among the benefits [of 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.
3
SUMMARY OF MAJOR PROVISIONS OF THE 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
4
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.
Ex 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 THE 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
5
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 H.R. 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.
COMMITTEE 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.
6
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
1 62, 500
Fiscal year 1977
130,000
Fiscal year 1978
2 138, 000
Fiscal year 1979
145,000
Fiscal year 1980
152, 000
Fiscal year 1981
160, 000
1 $30,000 for recording devices, 25 percent of $130,000 in personnel costs.
3 Salaries are tied to the changes in the CPI at a 5-percent real growth rate in GNP.
BASIS OF ESTIMATE
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. If 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.
7
SECTION-BY-SECTION ANALYSIS
SECTION 1
Section 1 provides that this act may be cited as the "Government
in the Sunshine Act."
SECTION 2
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
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.C. § 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 agency head, his deputy, and his
assistants may "head" an agency in the colloquial sense, they do not
have common duties and thus are not a collegial body, and their agency
would not come within this definition. On the other hand, while the
chair of a commission that heads 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-
8
ment 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.
MEETING
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-
ing of the requisite number of members in a single physical place, but
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.
9
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 Adminis-
10
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(
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.
11
(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 a "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 bring out
aspects of it not already made public through judicial proceedings,
news stories, and the like.
12
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 to lead 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
13
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-
H. Rept. 880 o - 76 2
14
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 meetings
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
15
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 meeting 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 furnish 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
16
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
meetings 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 would permit 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. Functional 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 he resides are applicable generally to actions against officers
of the United States. 28 U.S.C. § 1391(e), as well as in actions under
17
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
18
under subsection (g), (h), or (i), except that costs may be assessed
against an individual agency member only where the court finds that
he 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 (l)
This subsection provides that this section is not intended to alter
rights under the Freedom of Information Act, 5 U.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 under the Privacy Act of 1974. 5 U.S.C. § 552a, it may
not be withheld from him on the basis of this section.
19
Subsection (o)
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
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
20
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
21
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 parte 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 (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-
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
23
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 (D.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
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
24
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
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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 IH-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.
SUBOHAPTER IHI-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.
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SUBCHAPTER II-ADMINISTRATIVE PROCEDURE
§ 551. Definitions
For the purpose of this subchapter-
(1)
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25
(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)
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*
(b) This section does not apply to matters that are-
(1)
*
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*
[(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;
*
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§ 552b. Open Meetings
(a) For purposes of this section-
(1) the 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;
26
(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, (σ) 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, confiden-
tial information furnished only by the confidential source, (E)
disclose investigative techniques and procedures, or (F) endanger
the life or physical safety of law enforcement personnel;
(8) disclose information contained in or related 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 case 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 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 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 with 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
which is proposed to be withheld under subsection (c). A single vote
27
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, 80 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) henever any person whose interests may be directly affected by
u 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. If 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 portión together with a list of 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 of 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 official 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 and 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 80 requires and that no earlier an-
28
nouncement 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 commence-
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 of 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 frur-
nished to any person at no greater than the actual cost of duplication
thereof or, if in the public interest, at no cost.
(g) 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 Office of the Chairman of 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. Any person
may bring a proceeding in the United States District 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.
29
(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-
ing 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 violations
by the agency of the requirements of this section 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 costs 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).
30
(l) Except as specifically provided in this section, nothing herein
expands or limits the present rights of any person under section 552
of this title, except that the provisions of this Act shall govern in
the 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 44, 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-
31
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 may reasonably be
expected to be involved in the decisional process of the proceeding,
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 of 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 caused 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 affected 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 case
the prohibitions shall apply beginning at the time of his acquisi-
tion of such knowledge.
(2) 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, including the provisions of chapters 5
and 7 of title 5, shall apply to the exercise of the powers of the Postal
Service.
32
(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;
*
*
*
*
*
*
*
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. WILLIS 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.
(33)
34
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 meeting must be held to vote on
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
35
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
We feel that venue for actions brought under the legislation should
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.
(6) Personal Liability of Individuals
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.
36
(7) Ex Parte Communications
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 H.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.
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.
(37)
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.
All 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 Washington 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 be required to answer an ordinary complaint in
(39)
40
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 THONE,
EDWIN B. FORSYTHE,
ROBERT W. KASTEN, Jr.,
WILLIS D. GRADISON, Jr.
94TH CONGRESS
HOUSE OF REPRESENTATIVES
REPT. 94-
2d Session
880 Part 2
GOVERNMENT IN THE SUNSHINE ACT
APRIL 8, 1976.-Committed to the Committee of the Whole House on the State
of the Union and ordered to be printed
Mr. FLOWERS, from the Committee on the Judiciary,
submitted the following
REPORT
together with
ADDITIONAL AND SUPPLEMENTAL VIEWS
[To accompany H.R. 11656]
The Committee on the Judiciary, to whom was referred the bill
(H.R. 11656) to provide that meetings of Government agencies shall
be open to the public, and for other purposes, having considered the
same, report favorably thereon with amendments and recommend that
the bill as amended do pass.
The amendments are as follows:
Page 2, lines 19, 20, 21, 22 and 23 : Strike "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 delibera-
tions concern the joint conduct or disposition of agency business; and"
and insert: "the term 'meeting' means an assembly or simultaneous
communication concerning the joint conduct or disposition of agency
business by two or more, but at least the number of individual agency
members required to take action on behalf of the agency, but does not
include meetings required or permitted by subsection (d) ; and".
Page 3, line 1: Strike " (b) ? and insert:
" (b) (1) Members as described in subsection (a) (2) shall not jointly
conduct or dispose of agency business without complying with sub-
sections (b) through (g).
(2)
Page 3, line 19 : After "required" insert "or permitted".
Page 4, line 7: After "purposes", insert "or information which if
written would be contained in such records,".
Page 4, line 8: After "records" insert "or information".
Page 5, line 11 : Strike "where" and insert "after".
Page 5, line 12 Strike "already".
Page 5, line 13 Strike "or where" and insert "unless".
57-006
2
Page 5, line 15 Strike "proposal and insert "proposal, or after the
agency publishes or serves a substantive rule pursuant to section 553
(d) of this title
Page 5, line 19: After "action" insert "or proceeding".
Page 6, lines 7, 8, and 9: Strike " or with respect to any information
which is proposed to be withheld under subsection (c)
Page 7, line 9: Strike "of the portions".
Page 7, line 13 Strike "portions" and insert "meetings or portions
thereof".
Page 9, lines 13, 14 and 15 : Strike " by recorded vote taken subse-
quent to the meeting and promptly made available to the public,".
Page 9, lines 17 through 20 : Strike "In place of each portion deleted
from such a transcript or transcription the agency shall supply a writ-
ten explanation of the reason for the deletion and the portion of sub-
section (c) and any other statute said to permit the deletion."
Page 11, line 13 Strike "or its members".
Page 11, lines 21 and 22 : Strike "wherein the plaintiff resides, or has
his principal place of business" and insert "court of the United States
for the district in which the agency meeting is held, or in the District
Court for the District of Columbia".
Page 12, lines 13 and 14: Strike "Except to the extent provided in
subsection (i) of this section, nothing" and insert "Nothing".
Page 12, lines 19 through 23 : Strike (i) Any Federal court other-
wise authorized by law to review agency action may, at the applica-
tion of any person properly participating in the judicial review pro-
ceedings, inquire into violations by the agency of the requirements of
this section and afford any such relief as it deems appropriate.
Page 12, line 24 Strike (j) and insert '(i)".
Page 13, lines 2 and 3: Strike (g), (h), or (i) and insert (g) or
(h)".
Page 13, lines 4, 5, and 6: Strike "against an individual member of
an agency only in the case where the court finds such agency member
has intentionally and repeatedly violated this section and".
Page 13, line 11 : Strike (k)" and insert '(j)".
Page 13, line 20 : Strike '(1)" and insert (k)
Page 14, line 5: Strike "(m)" and insert (1)
Page 14, line 9: Strike "(n)" and insert "(m)"
Page 14, line 14 Strike (o) and insert (n)
Page 18, line 8: After "required" insert "or permitted".
PURPOSE
The purpose of the proposed legislation is to amend the Administra-
tive Procedure Act provisions of title 5, United States Code, to pro-
vide, subject to the exceptions in the bill, that all meetings of agencies
headed by a collegial body of two or more members shall be open to
public observation. The new section added to title 5 would provide for
procedures and court jurisdiction to implement this purpose. In addi-
tion, the bill would add language to existing provisions of the
Administrative Procedure Act to bar ex parte communications in
connection with adjudication and formal rule making under the pro-
visions of that Act now codified as a part of title 5.
3
EXPLANATION OF COMMITTEE AMENDMENTS
Page 2, lines 19 through 23
(Definition of "meeting")
This amendment would change the definition of "meeting" in § 552b
(a) (2) to read "the term 'meeting' means an assembly or simultaneous
communication concerning the joint conduct or disposition of agency
business by two or more, but at least the number of individual agency
members required to take action on behalf of the agency, but does not
include meetings required or permitted by subsection (d) ; and".
New section 552b requires advance notice of the date and place of
meetings, their subject matter, and whether it will be open or closed to
the public. The revised language of the definition of "meeting" makes it
possible to identify the meeting and its purpose to satisfy this require-
ment of advance notice. It makes it clear that there must be at least
two members at the meeting, with an additional requirement that there
also be at least the number of individual agency members required to
take action on behalf of the agency. It also adds the clarification that
the term includes any joint communication such as a conference tele-
phone call. This definition must be read in relation to the amendment
made to subsection (b) which provides that the agency members re-
ferred to in this subparagraph cannot jointly conduct or dispose of
agency business other than as provided in the section-that is, in an
open meeting or, where authorized, a closed meeting governed by the
same definition. This amendment includes the words "but does not
include meetings required or permitted by subsection (d)". This would
except from "meetings" covered by the new section those meetings re-
quired to decide matters covered by subsection (d) which are pro-
cedural in nature and concern decisions and voting on closing meetings
and on announcing meetings. However, such meetings could not in-
clude the conduct or disposition of agency business.
Page 3, line 1
(Prohibition Against Evasion of Provisions of New Section 552b as
to Conduct or Disposition of Agency Business)
The new language added as new subparagraph (b) (1) of section
552b would bar the conduct or disposition of agency business other
than as provided in subsections (b) through (g) of new section 552b.
This gives an express standard for compliance. On challenge, a court
will be in a better position to determine whether the agency has com-
plied. This provision will bar any effort of the number of members
necessary for agency action to deliberate, discuss, conduct, or dispose
of agency business other than in an open meeting as provided in new
section 552b or in a closed portion authorized by the exceptions in that
section.
Page 3, line 19
(Statutes requiring or permitting withholding of particular
information)
The amendment adds the words "or permitted" to the existing lan-
guage of exception (3) of subsection (c) providing an exception for
4
withholding of information directed by statute. Many statutes permit
the withholding of information but since they allow judgment or dis-
cretion in withholding information, the bill would not have originally
included such statutes within the exception. The amendment is con-
sistent with the language and purpose of those statutes which assume
that such information can be withheld when the information has been
determined to fit the criteria or particular identification of the statute
concerned.
Page 4, line 7
(Clarification as to Non-record Information)
The exceptions in the bill were patterned after the Freedom of In-
formation Act (5 U.S.C. 552), an Act which concerns written records.
This bill concerns the right of members of the public to observe agency
meetings at which information will be given in oral discussions. This
amendment clarified the fact that the exception also applies to infor-
mation given orally by adding to "records" the phrase "or information
which if written would be contained in such records".
Page 5, lines 11 and 12
(To Clarify When the Exception as to Premature Disclosure of
Agency Will Not be Available)
The substitution of the word "after" for "where" is to clarify that
the exception as to a frustration of agency action will be unavailable
after the content or nature of the action has been disclosed. The word
"already" is deleted as unnecessary.
Page 5, line 13
(Inserting the Word "Unless" to Qualify the Previous Bar to the Use
of the Exception in Cases Where Disclosure is to be Made Prior
to Final Agency Action)
The word "unless" is substituted for "or where" to make a further
qualification concerning required statutory disclosure prior to final
action.
Page 5, line 15
(Reference to Public Notice of Rule Making Under Section 553 of
title 5)
The addition of the language relating to rule making makes it
clear that the exception does not apply after notice of rule making
has been given under section 553.
Page 5, line 19
(Legal "Proceedings")
The addition of the word "proceeding" is added SO that it will be
included along with a civil action.
5
Page 7, line 9, and line 13
(Clarification of Meetings Subject to Exception)
The words "of the portions" were deleted because of the difficulty
of determining how "a majority of the portions" of agency meetings
could be determined. While a "portion" could be all or a part of a
meeting, the term is unclear for the purpose of determining a majority
as provided in the subparagraph. This amendment will make such
a determination possible.
Page 9, lines 13, 14 and 15 and Page 6, lines 7, 8 and 9
(Striking the Requirement for Agency Vote on Each Transcript
Deletion)
The amendment on page 9 is to strike the words ", by recorded
vote taken subsequent to the meeting and promptly made available
to the public,". This would preserve the right of the public to access
to a transcript or recording of any closed meeting with only those
portions deleted that are subject to the exceptions in section 552b.
However, it would relieve the agency members from the detailed
and procedurally difficult operation of going over the transcripts or
recordings and voting on deletions. The amendment on page 6, lines
7, 8 and 9 deletes the words or with respect to any information
which is proposed to be withheld under subsection (c)", and this is
a conforming amendment to the one described above.
Page 9, lines 17, 18, 19 and 20
(Striking the Requirement for a Written Explanation of Each
Deletion)
The amendment deletes the requirement of a written explanation
of each deletion from the transcript by striking the words "In place
of each portion deleted from such a transcript or transcription the
agency shall supply a written explanation of the reason for the dele-
tion, and the portion of subsection (c) and any other statute said
to permit the deletion." Of course, the complete transcript or record-
ing must be made and kept as provided in the section to be available
in the event of any court challenge as provided in subsection (h).
Page 11, line 13
(Deletion of "or its members")
The language of subsection (h) authorizes an action against the
agency SO that it would not be necessary to join individual members to
gain court jurisdiction. The amendment also removes the objection
that the provision would have the effect of subjecting individual
agency members to suit for official acts and possibly being assessed
costs and attorneys fees. The amendment also conforms to the amend-
ment on page 13 deleting the references to members in reference to
the assessment of costs.
6
Page 11, lines 20 and 22
(Changing Venue Requirements to Require Challenges Based on
Section 552b to be Brought in the District in Which the Agency
Meeting is Held or in the District of Columbia or in the District in
Which the Agency Has its Headquarters)
This amendment substitutes the words "court of the United States
for the district in which the agency meeting is held, or in the District
Court for the District of Columbia" for the words "wherein the plain-
tiff resides, or has his principal place of business." It should be em-
phasized that the language of the section conferring jurisdiction in
the district courts to enforce requirements of the section and permit-
ting "any person" to bring the action are retained. These actions
would concern meetings of the agency and matters relating to those
meetings. It is therefore logical that the actions be brought in districts
in, which those meetings are or have been held. The amended venue
provisions are, therefore, appropriate in view of the purpose of the
new section and of court enforcement of its specific provisions con-
cerning the conduct of the meetings.
Page 12, lines 13 and 14 and
lines 19 through 23 and
Page 13, lines 2 and 3
(Striking Subsection (i) referring to Review of Agency Actions)
While subsection (h) of section 552b provides that any court, acting
under the jurisdiction provided therein to enforce the requirement of
subsections (b) through (g) of the section cannot set aside, enjoin or
invalidate any agency action by reason of the violation concerned,
subsection (i) would permit such invalidation incident to a review on
the merits. The amendment strikes subparagraph (i) from the section.
Section 706 of title 5 is the section of the Administrative Procedure
Act concerning the scope of judicial review and details the basis for
invalidation of agency action. Included therein is item (2) (D) which
provides that a reviewing court shall hold unlawful and set aside
agency action, findings, and conclusions found to be "without observ-
ance of procedure required by law". Adequate authority is therefore
provided by law to inquire into matters governed by the new section
in the event of such subsequent judicial review. The exception in sub-
section (h) in lines 13 and 14 of page 12 referring to subsection (i) is
also deleted as a conforming amendment as is the reference to sub-
section (i) in original subsection (j) which would then be re-lettered.
Page 12, line 24; Page 13, lines 11 and 20;
Page 14, lines 5, 9 and 14
These are conforming amendments to change subsection designations
as the result of the deletion of subsection (i).
7
Page 12, lines 19 through 23
(Deletion of Provision Concerning Assessment of Attorneys Fees and
Costs Against Individual Agency Members)
The provision is deleted because it was concluded that it is not de-
sirable or even possible to assess costs against individual members for
actions taken by a collegial body based upon the participation by those
agency members in agency action.
Page 18, line 8
(Amendment to Information Permitted to be Withheld Conforming
Amendment to that Added to 552b (c) (3) on page 3)
As introduced, the bill would have also amended the Freedom of
Information Act provisions of § 552 (b) (3) to limit the exception for
information covered by statutes to only information covered by stat-
utes which require that information of a particular type or criteria be
withheld. This would not provide an exception for statutes which
permit the agency to determine whether such information should be
released or not. The amendment was made because the language is
unduly restrictive.¹ (For example, the section concerning release of
atomic energy information permits a continuous review of restricted
data to permit declassification where information may be declassified
"without undue risk to the common defense and security." 42 U.S.C.
2162)
OUTLINE OF PROVISIONS OF THE BILL
Section 1 of the bill provides that the Act is to be cited as the "Gov-
ernment in the Sunshine Act".
Section 2 of the bill states that the bill is intended to provide the
public with the fullest practicable information as to Governmental
decisionmaking processes.
Section 3 (a) of the bill adds a new Section 552b to title 5 and pro-
vides for open meetings by the agencies defined in the section.
Subsection (a) provides for definitions in addition to those appli-
cable to the Administrative Procedure Act provisions of title 5. The
term "agency" is to include Government authorities as defined in the
Administrative Procedure Act provisions of section 551 and the Free-
dom of Information Act provisions of Section 552 (e) with the further
qualification that it is to be an agency headed by a "collegial" body of
two or more members "a majority of whom are appointed to such
position by the president with the advice and consent of the Senate".
The bill, as referred to the Committee on the Judiciary, would have
defined "meeting" as the deliberations of the agency members re-
quired to take action concerning the joint conduct or disposition of
agency business. The Judiciary Committee amendment is to strike
1 Note the discussion concerning similar language and on identical amendment to the
language of exception (3) of subsection (c) of new section 552b in the explanations
of committee amendments and in the general statement of the committee in this report.
S
the previous definition of meeting and provide that the term "meet-
ing" means an assembly or simultaneous communication concerning
the joint conduct or disposition of agency business by two or more, but
at least the number of individual agency members required to take
action on behalf of the agency. The definition includes an exception
that the term "meeting" will not include meetings required or per-
mitted by subsection (d) of new Section 552b. Subsection (d) of the
amended bill concerns the closing of agency meetings and the manner
in which those meetings can be closed by votes of the agency.
A "member" means an individual who belongs to the collegial body
heading an agency.
Subsection (b) of the bill as amended by the Judiciary Committee
refers in subparagraph (b) (1) to "members", as described in Section
(a) (2), as two or more members of an agency, but at least the num-
ber of agency members required to take action on behalf of the agency.
This subparagraph provides that the members SO described shall not
jointly conduct or dispose of agency business without complying with
subsections (b) through (g) of this section, which contain the require-
ments for meetings covered by the section. Subparagraph (b) (2)
contains the language of original section (b) and states the basic re-
quirement of the bill that every portion of every meeting of an agency
is to be open to public observation unless falling within the excep-
tions of subsection (a).
Subsection (c) provides ten exceptions which authorize an agency
to close "any portion of any agency meeting". These exceptions would
permit closed meetings to prevent the disclosure of the following:
1. Matters authorized under executive order criteria to be kept
secret in the interest of national defense or foreign policy.
2. Matters which relate solely to the internal personnel rules and
practices of an agency.
3. Information required or permitted to be withheld from the public
by any statute. The Judiciary Committee amendment to this provi-
sion was to insert the term "or permitted" to provide for an applica-
tion to information covered by statutes requiring a degree of judg-
ment or discretion in the release of information.
4. Privileged or confidential trade secrets and commercial or finan-
cial information obtained from a person.
5. Matters involving the criminal accusation of commission of a
crime or formal censure of any person.
6. Information of a personal nature constituting an unwarranted
personal invasion of privacy.
7. Investigatory records or information which if written would be
contained in such records compiled for law enforcement purposes but
with specific limitations where disclosure would:
(A) interfere with enforcement proceedings,
(B) deprive a person of 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-as to
records or information compiled in a criminal investigation by a
criminal law enforcement authority, or as to records or informa-
tion compiled by an agency in a lawful security intelligence in-
9
vestigation-confidential information furnished only by the con-
fidential source,
(E) disclose investigative techniques and procedures,
(F) endanger the life or physical safety of law enforcement
personnel.
8. Information by or for an agency responsible for the regulation or
supervision of financial institutions concerning examination, opera-
tion or condition reports of those institutions.
9. Information where premature disclosure would-
(A) for agencies involved in the regulation of currencies, secu-
rities, commodities, or financial institutions which would either
lead to significant financial speculation or to significantly en-
danger the stability of any financial institution, or
(B) be likely to significantly frustrate the implementation of a
proposed agency action.
This exception would not be available after the content or nature of
the proposed action has been disclosed to the public by the agency or
unless the agency, as required by law, makes such disclosure prior to
taking final agency action on the proposal. It is further provided in the
amended bill that the exception will not be available after the agency
publishes or serves a substantive rule pursuant to Section 553 (d) of
this title.
10. Concern matters relating to litigation, including those concern-
ing the agency's issuance of a subpoena, participation in a civil action
or proceeding, or action in a foreign court or international tribunal.
The exception would also apply to matters concerning arbitration,
formal agency adjudication or determinations on the record after op-
portunity for a hearing (formal rule making).
Subsection (d) (1) of the amended bill details the procedures to be
followed in closing a portion or portions of a meeting. A separate re-
corded vote of agency members is required in each proposal to close a
meeting. A "series of portions of meetings" for a period of 30 days
involving the "same particular matters" can be closed by a single vote.
Subsection (d) (2) provides that a person affected may make a request
for closure based on the exceptions related to (5) accusation of a crime,
(6) information of a personal nature or (7) investigatory records.
Within one day of a vote to close, the written copy of the vote reflect-
ing the vote of each member is to be made public and if a portion of a
meeting is to be closed. there must be a full written explanation of the
action of all persons who will attend and their affiliation. When a ma-
jority of an agency's meetings may be closed under exceptions relating
to (4) trade secrets and financial information, (8) financial institution
regulations, (9) premature disclosures concerning financial specula-
tion. stability of financial institutions or frustration of agency action,
or (10) matters relating to litigation, arbitration, formal agency adju-
dication or determinations on the record, the agency may provide by
regulation for the closing of such portions of meetings. However, a
majority of the members of the agency must still vote by recorded vote
at the beginning of each meeting or portion thereof to close the exempt
portion. The agency will also be required to provide the public with an
announcement of the date, place and subject matter of the meeting and
H. Rept. 94-880-2
10
"each portion thereof" at the earliest practicable time prior to the
meeting.
Subparagraph (e) provides for the public announcement, at least
one week before a meeting, of the date, place, subject matter and
whether it is open or closed, but by recorded vote, a majority of the
members may provide for an earlier meeting date, in which case the
announcement must be made prior to the commencement of the
meeting.
Subparagraph (f) (1) of the amended bill requires that there be a
complete transcript or electronic recording of all meetings or portions
of meetings closed to the public. The only exception is for meetings or
portions closed relative to Exception 10 concerning litigation, arbitra-
tion, formal adjudication or formal rule making. A revised version of
the transcript or recording, with the portions deleted which are cov-
ered by the exceptions of subsection (c), is to be made available to the
public. The complete transcript or recording must be maintained for
two years or for one year following disposition of the matter. Sub-
paragraph (f) (2) provides that written minutes of open agency meet-
ings shall be made public, and maintained for at least two years.
Subparagraph (g) requires promulgation of regulations to imple-
ment the requirements of the section. Notice and written comment are
required. Any person can bring an action in the U.S. Court of Appeals
for the District of Columbia to require promulgation or to challenge
the regulations, and similarly any person can bring a proceeding in the
United States Court of Appeals for the District of Columbia to set
aside agency regulations not satisfying subsections (b) through (f)
and to require new regulations that do so.
Subparagraph (h) of the amended bill confers jurisdiction on the
district courts to enforce the requirements of the section and author-
izes actions by any person which may be brought in the court of the
United States for the district in which the agency meeting is held or
in the District Court for the District of Columbia or where the agency
has its headquarters. The Government has the burden to sustain its
actions and the court will have access to any transcript or recording
and may grant appropriate equitable relief. Nothing in the section
may be taken as the sole basis for invalidating the agency action in-
volved in the meeting which is the subject of the litigation.
Subparagraph (i) of the amended bill was previously subsection
(j) and the designation was changed because the bill was amended to
strike (i), as explained in the discussion of the committee amendments.
The redesignated paragraph provides for attorneys fees and litigation
costs for "any other party" who substantially prevails in an action.
This can include assessment of costs against the United State. The
Committee on the Judiciary struck language which would have per-
mitted the assessment of costs against individual agency members.
They may also be assessed against plaintiffs where the court finds that
the primary motive was for frivolous or dilatory purposes.
Subparagraph (j) of the amended bill [relettered] provides for an
annual report to Congress involving matters covered by the section.
Subparagraph (k) of the amended bill [relettered] relates to the
Freedom of Information Act and in effect says that nothing in the
section is to be interpreted as expending or limiting the rights of any
11
person under Section 552 except as specifically provided as to tran-
scripts and recordings.
Subparagraph (1) of the amended bill [relettered] provides that
the section is not to be construed as limiting information to Congress
and does not authorize the closing of meetings required to be open by
law.
Subparagraph (m) of the amended bill [relettered] preserves the
rights of individuals to any record accessible under the Freedom of
Information Act provisions of section 552 (a).
Subparagraph (n) of the amended bill [relettered] provides that
the section is to govern in the event of a meeting also subject to the
Federal Advisory Committee Act.
Section 3 (b) of the bill amends the chapter analysis of chapter 5 of
title 5 by adding the catch line of new section 552b as follows:
"552b. Open meetings."
Section (a) of the bill adds a new subsection (d) (1) to section 557
of title 5, United States Code, concerning ex parte communications in
relation to adjudication and formal rule making under the Adminis-
trative Procedure Act. Section 557 concerns decisions based on the
record of hearings conducted in accordance with section 556. The new
subsection (d) added by this bill would provide express limitations
and procedures relating to ex parte communications relative to the
merits of agency proceedings. The bar would apply to ex parte com-
munications relative to the merits of such proceeding by interested
persons outside the agency made to agency personnel involved or ex-
pected to be involved in the decisional process. Similarly, no such
agency official could make an ex parte communication to an interested
party outside the agency. The incorporation of the new subsection in
Section 557 results in the provisions being made applicable to adjudi-
cations and to formal rule making. The language of the bill provides
for communications or memoranda of oral communications to be made
a part of the public record of the proceedings along with written re-
sponses and memoranda of oral responses. In the event there is such
an ex parte communication, the agency, administrative law judge or
presiding employee may require a party to show cause why his claim
or interest in the proceeding should not be denied, dismissed or disre-
garded or otherwise be acted upon adversely.
Section 4(b) amends Section 551, the definitions section of the Ad-
ministrative Procedure Act, to include an item (14) a definition of
"ex parte communication". This term is defined as "an oral or written
communication entered on the public record with respect to which
reasonable prior notice to all parties is not given."
Section 4(c) amends Section 556 (d) of title 5 which is the section
concerning hearings, presiding employees, powers and duties, burden
of proof, evidence and record as to basis of decision by the addition of
a sentence referring to ex parte communications. The amendment is to
add that "The agency may, to the extent consistent with the interests
of justice and the policy of the underlying statutes administered 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.
Section 5 of the bill provides for conforming amendments. Sub-
section (a) amends Section 410 (b) (1) of title 39 (Postal Service) U.S.
12
Code to include in the subparagraph the words "Section 552 (a) (rec-
ords about individuals), Section 552 (b) (open meetings)
Subsection 5 (b) of the amended bill amends Section 552 (b) (3) of
title 5, the subparagraph which relates to matters specifically exempted
from disclosure by statute. As amended, subparagraph (3) would read
"Required or permitted to be withheld from the public by any statute
establishing particular criteria or referring to particular types of
information."
Section 6 of the bill provides that the bill is to take effect 180 days
after the date of enactment, except that subsection (g) of Section 552b,
added to title 5 by the bill, is to take effect upon enactment. Subsection
(g) is the subsection which concerns the promulgation of implement-
ing regulations.
OPENNESS OF COMMITTEE MEETINGS
The basic purpose of this bill is expressed in subsection (b) [amend-
ed as (b) (2) of new section 552b where it is provided that meetings
of agencies covered by the section are to be open to public observation
unless the information being discussed falls within an exception in
subsection (c). Our system of Government assumes that citizens have
the right to know how their government operates and what the govern-
ment is doing for them and in their name. Public participation and
awareness will be promoted by increasing openness in Government and
this should lead to improved decision-making and greater account-
ability on the part of the Government. At the same time, an under-
standing of Government operation and action will promote public
confidence in the Government.
The subjects dealt with in this bill have been extensively considered
both in the Senate and in the House. The provisions of the bill as
referred to the Committee on the Judiciary has already been discussed
at length in Part I of this report based upon the consideration of the
bill before the House Committee on Government Operations (H. Rept.
94-880, 94th Cong. 2d Sess., Part I). A similar discussion as to pro-
visions embodied in the Senate companion bill, S. 5, was the subject
of the report of the Senate Committee on Government Operations
(Senate Report 94-354, 94th Congress, 1st Session). It is therefore not
necessary to discuss in detail the provisions of the bill which were ap-
proved without change by this Committee.
The consideration by the Committee on the Judiciary included two
days of hearings on March 24 and 25, 1976. The committee further had
the advantage of the previous hearings in the House and the Senate
and the reports referred to above. The amendments recommended by
the Committee are based on its consideration of the reports, testimony
before the committee, and the material relating to the previous con-
siderations made available to the Committee.
AGENCIES SUBJECT TO THE BILL
Witnesses appearing at the hearing before this committee discussed
the provisions of the bill which define the agencies which will be sub-
ject to its provisions. As has been indicated in the outline of provisions
of the bill, the term "agency" is to include Government authorities as
13
defined in the Administrative Procedure Act provisions of section 551
and section 552(e) of title 5 with the further qualification that in
order to be covered, an agency must be headed by a collegial body of
two or more members, a majority of whom are appointed to their posi-
tion by the President with the advice and consent of the Senate. The
Senate report, in discussing the similar provisions of the bill before
that body, included a list of agencies that would be covered by the
bill. In view of the similarity of the provisions contained in the
present bill and the bill S. 5, considered by the Senate, the list devel-
oped by the Senate is included at this point to indicate the potential
coverage of the bill. However, the definition will govern the actual
application of the bill rather than the list set out below. The list is
as follows:
Board for International Broadcasting
Civil Aeronautics Board;
Commodity Credit Corporation (Board of Directors) ;
Commodity Futures Trading Commission;
Consumer Product Safety Commission;
Equal Employment Opportunity Commission;
Export-Import Bank of the United States (Board of Directors) ;
Federal Communications Commission;
Federal Election Commission;
Federal Deposit Insurance Corporation (Board of Directors) ;
Federal Farm Credit Board within the Farm Credit Administra-
tion;
Federal Home Loan Bank Board;
Federal Maritime Commission;
Federal Power Commission;
Federal Reserve Board;
Federal Trade Commission;
Harry S. Truman Scholarship Foundation (Board of Trustees) ;
Indian Claims Commission;
Inter-American Foundation (Board of Directors) ;
Interstate Commerce Commission;
Legal Services Corporation (Board of Directors) ;
Mississippi River Commission;
National Commission on Libraries and Information Science;
National Council on Educational Research;
National Council on Quality in Education
National Credit Union Board:
National Homeownership Foundation (Board of Directors) ;
National Labor Relations Board;
National Library of Medicine (Board of Regents) ;
National Mediation Board;
National Science Board of the National Science Foundation;
National Transportation Safety Board;
Nuclear Regulatory Commission;
Occupational Safety and Health Review Commission
Overseas Private Investment Corporation (Board of Directors) ;
Parole Board;
Railroad Retirement Board;
Renegotiation Board;
Securities and Exchange Commission;
14
Tennessee Valley Authority (Board of Directors) ;
Uniformed Services University of the Health Sciences (Board of
Regents) ;
U.S. Civil Service Commission;
U.S. Commission on Civil Rights;
U.S. Foreign Claims Settlement Commission
U.S. International Trade Commission
U.S. Postal Service (Board of Governors) ; and
U.S. Railway Association;
The committee considered the various suggestions concerning changes
in the description of agencies covered by the bill and concluded that
the general definition provides the best approach and therefore did
not change the language as contained in the bill referred to the
committee.
MEETINGS SUBJECT TO NEW SECTION 552b
A considerable portion of the testimony presented to the committee
concerning the definition of "meeting" is included in the new section.
The language of the bill as referred to the committee provided that
a meeting would consist of "deliberations" which concern the joint
conduct or disposition of agency business. It was pointed out that this
language could make it difficult to identify a meeting in advance of
that meeting, or to determine whether the "meeting" was one actually
covered by the provisions contained in the bill. The subcommittee
considering the bill recommended language which was intended to
remedy this situation and provide the basis for adequate and meaning-
ful notice required by the bill of the date and place of meetings, their
subject matter, and whether they would be open or closed to the public.
This language underwent further modification before the Full Com-
mittee and the language ultimately approved by the committee was
to provide that "meeting" would be defined as "an assembly or simul-
taneous communication concerning the joint conduct or disposition
of agency business by two or more, but at least the number of indi-
vidual agency members required to take action on behalf of the
agency, but does not include meetings required or permitted by sub-
section (d)". This definition makes it possible to determine and de-
fine the basic purpose of the meeting. As is indicated in the outline
of provisions of the bill and also in the explanation of committee
amendments, this definition must be read in the light of the amend-
ment made to subsection (b) of new section 552b which prohibits
the conduct or disposition of agency business other than as provided
in subsections (b) through (g) of new section 552b. The definition of
"meeting" contains the qualification that the term "meeting" for the
purposes of the section will not include meetings required or permitted
by subsection (d), a subsection which concerns the closing of meetings.
As a result, it will be possible for agencies to make the necessary
decisions concerning opening or closing meetings prior to the holding
of covered meetings without being subject to the detailed procedures
provided for in the balance of section 552b.
CLARIFICATION CONCERNING EXCEPTIONS
The committee considered the provisions of the exemption provided
in subsection (c) (3) of section 552b concerning the disclosure of in-
15
formation required to be withheld from the public by any statute
establishing particular criteria or referring to particular types of
information. This exemption was discussed at page 9 of the
report of the Committee on Government Operations, which pointed
out that, under the original language of this bill, a statute that permits
withholding rather than actually requiring it would not come within
the exception provided in the paragraph. While the committee agrees
that the language concerning criteria or types of information should be
retained, it was felt that limiting the exemption to information re-
quired to be withheld by statute would be too restrictive. Rather, the
exemption should extend to those statutes which require or permit
information to be withheld from the public where the statute estab-
lishes criteria or refers to particular types of information.²
The exemptions contained in subsection (c) of the new section are
based on the exemptions presently contained in the Freedom of Infor-
mation Act provisions of section 552 of Title 5. The latter exemptions
relate to governmental records and in most instances, this same or
similar language can be applied to information being presented at a
meeting. However, it was brought to the attention of the committee
that in connection with exemption No. 7, the exemption relating to
investigatory records compiled for law enforcement purposes, it was
important to qualify the provision to the extent that the exemption
would be clearly applicable in addition to records to information
which if written would be contained in such records. This is in the
nature of a technical amendment which the committee feels is con-
sistent with the basic purpose of the exemption in its original form.
In the course of subcommittee consideration of this exemption, there
was a discussion of whether there should be a change in the language
to cover matters discussed at the agency meetings at an early stage of
the investigation when it was not clear whether enforcement proceed-
ings would actually be instituted. However, after a discussion, it was
felt that the existing language was adequate to meet the situation.
Exemption 9 of subsection (c) of new section provides an exception
relating to the withholding of information where premature disclo-
sure would, in the case of an agency which regulates currency, securi-
ties, commodities or financial institutions, be likely to lead to signifi-
cant financial speculation or significantly endanger the ability of a
financial institution. The exemption would also apply to information
where premature disclosure would likely significanty frustrate the im-
plementation of proposed agency action. However, the latter exemp-
tion would not be available where the content or nature of the agency
action has been disclosed to the public. It was objected that the time
when this bar to the application of the exemption would go into effect
was not clear by the use of the term "where". Accordingly, the commit-
tee recommended an amendment to substitute the word "after" SO that
the exemption would not be available after the content or nature of the
proposed action had been disclosed by the agency. In a conforming
amendment, the term "unless" was inserted SO that the agency disclo-
sure required by law would also be covered. A similar amendment was
made to the same provision which in effect provided that the exemp-
2 This would clarify the fact that statutes such as 50 U.S.C. 403 (d) (3) concerning
security information and 8 U.S.C. 222 concerning confidential records of the State Depart-
ment concerning visas and related matters, are included.
16
tion would not be available after publication of agency notice of rule-
making pursuant to section 553 (d) of Title 5.
The committee also added a clarification to the exemption No. 10
which concerns agency participation in litigation or related matters.
The qualification is to add the term "or proceeding" to the reference
to agency participation in a civil action SO that the exemption would
clearly apply to information relating to the agency's participation in
a civil action or proceeding.
TRANSCRIPT REQUIREMENT
Subsection (f) (1) of the new section requires that a complete
transcript or an electronic recording which is adequate to record the
proceedings shall be made of each agency meeting or portion of a
meeting closed to the public with the single exception of meetings
closed to the public pursuant to paragraph 10 of subsection (c). The
committee considered the difficulties incident to the review of the tran-
script of closed meetings required by the original provisions of the
bill. The bill would have required that each deletion authorized by an
exception in the section would be made by recorded vote of the agency
taken subsequent to the meeting. It was pointed out this would require
a considerable expenditure of the time of the senior officials of the
agency and that this would be cumbersome and time-consuming. It
was determined that the intent of the bill could be adequately carried
out by deleting this provision and similarly deleting the provision re-
quiring a written explanation of the reason and statutory basis for
each deletion. These amendments would not change the requirements
of the section making revised copies of the transcript or transcription
of the electronic recordings available to any person upon payment of
the cost of duplication or its transcription. Further, it is provided that
if the agency determines it to be in the public interest, the material
can be made available to the public without cost. The complete ver-
batim copy of the transcription or the complete electronic recording of
each meeting closed to the public would be maintained by the agency
for at least two years after the meeting or until one year after the
conclusion of the agency proceeding with respect to which the meet-
ing was held, whichever occurs later.
COURT JURISDICTION UNDER SECTION 552b (h)
Subsection (h) provides jurisdiction in the district courts of the
United States to enforce the requirements of sections (b) through
(f) of the new section. Such actions may be brought by any person
against the agency prior to or within sixty days after the meeting
at which the alleged violation of the section occurred. The time limit
would be varied in the event that a public announcement of the meet-
ing had not been made in accordance with the requirements of the
section. The original version of the bill would have provided juris-
diction in the courts to bring such actions against the agency or its
members. The committee recommended the deletion of the provision
for joinder of members for since the subsection authorizes an action
against the agency, there would be no necessity to join individual mem-
bers to gain court jurisdiction. Further, as is discussed below, the
17
committee also amended the bill to delete the provision authorizing
the assessment of court costs against individual agency members. As
was pointed out in the explanation of the committee amendments, these
amendments remove the objection that individual agency members
would be subjected to suit for official acts and possibly being asessed
costs and attorneys fees in these circumstances. In line with these
principles, the committee recommends the deletion of the provision
in original subsection (j) which would have permitted the asessment
of costs against individual members of an agency.
Objections were raised at the hearings on the bill concerning the
breadth of the provisions concerning venue for actions authorized
by the bill. The committee concluded that there should be no limita-
tion upon the jurisdiction provided in the bill nor persons who could
bring the actions contemplated by the bill. However, the bill concerns
meetings and matters relating to meetings that have a definite rela-
tion to certain locations, and the practical aspects concerning govern-
ment action and court consideration of these matters make it logical
to provide venue in the district where the agency meeting is held,
where the agency has its headquarters, or in the District Court for the
District of Columbia.
SCOPE OF JUDICIAL REVIEW
Subsection (i) of subsection 552b as contained in the bill referred
to the committee would have provided that any federal court other-
wise authorized by law to review agency action could on application
of any person properly participating in the judicial review proceedings
inquire into the violations of the requirements of the section and af-
ford any relief deemed appropriate. The committee recommends de-
letion of this language. As was outlined in the explanation of the com-
mittee amendments, it was concluded that the provisions of section 706
of title 5 of the Administrative Procedure Act provides adequate au-
thority to inquire into the matters apparently referred to in original
subsection (i). Section 706 concerns judicial review and details the
basis for invalidating agency action. Item 2(d) as contained in that
section authorizes a court to set aside agency action which was taken
"without observance of proceedings required by law". In consideration
of matters covered by this section, the courts, in reviewing actions,
would then therefore be prepared to proceed in accordance with their
normal procedures under Section 706. The weight to be given viola-
tions of the provisions of section 552b would be considered as are other
matters covered by this provision in the Administrative Procedure
Act. The reviewing court would then be in a position to determine
whether the violation was of material prejudice to the party involved.
Ex PARTE COMMUNICATIONS
The provisions added to Section 557 of title 5 of the United States
Code by Section 4(a) of the bill are almost identical to the provisions
contained in the bill H.R. 10197, presently pending before this com-
mittee. The bill H.R. 10197 was the subject of a hearing before this
committee's Subcommittee on Administrative Law and Governmental
Relations on December 4, 1975. At that hearing testimony was received
from the American Bar Association in support of the provisions gov-
H. Rept. 94-880-3
18
erning ex parte communications. At that hearing it was noted that the
provisions of H.R. 10197 on this subject paralleled the provisions on
the same subject contained in S. 5, the Senate companion measure to
the present bill, H.R. 11656. At that time, the American Bar Associa-
tion witness stated that the provisions in the Senate version were ac-
ceptable to his Association. The provisions in the bill H.R. 11656 have
a different numbering system, but otherwise are substantially identical
to the provisions referred to in the Senate bill, S.5.
In order to ensure both fairness and soundness to adjudication and
formal rule making, the applicable provisions of the Administrative
Procedure Act require a hearing and decision on the record. Such
hearings give all parties an opportunity to participate and to rebut
others' presentations. Such proceedings cannot be fair or soundly de-
cided, however, when persons outside the agency are allowed to com-
municate with the decision-maker in private and others are denied
the opportunity to respond.
The present Administrative Procedure Act provisions of title 5 do
place a degree of limitation on ex parte communications, but the
coverage is not as complete as would be provided by this bill. For
example, ex parte contacts with agency heads are not covered and
neither are contacts relating to formal, on-the-record rulemaking
hearings. The language of this bill would close the loopholes, and
would prohibit all external ex parte communications between agency
members (and decisional employees) and persons outside the agency
regarding the merits of any formal proceeding. The proposal also
provides that any prohibited communication received by an agency
must be placed on the public record and that the agency may rule
against the person who made the communication as a sanction for
doing SO. The bill therefore establishes a prohibition against ex parte
communications in such formal, trial-type proceedings. It applies to all
agencies governed by the Administrative Procedure Act. While this is
presently implied by section 556 (e) of the Administrative Procedure
Act which states that "the transcript of testimony and exhibits, to-
gether with all papers and requests filed in the proceeding, constitute
the exclusive record for decision", the Administrative Procedure Act
provisions of title 5 contain no general statutory prohibition against
ex parte contacts. To invalidate an agency proceeding because of
ex parte contacts, a court must rely on constitutional standards, rather
than specific provisions, Sangamon Valley Television Corp. V. F.C.C.,
269 F.2d 221 (1959). This bill would therefore provide for the first
time a clear, statutory prohibition of ex parte contacts of general
applicability.
The prohibition only applies to formal agency adjudication. In-
formal 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 do not 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 con-
tacts, this section will supplement those provisions. 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.
19
The bill forbids ex parte communications between interested persons
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 includes, for example, requests
by one party to a proceeding for subpenas, adjournments, and
continuances.
Contacts are forbidden between an interested person outside the
agency and any agency member, administrative law judge, or other
employee involved in the decisionmaking process. The word "em-
ployee" includes both those working for the agency full time and
individuals working on a part-time basis, such as consultants.
The wording "interested persons" covers 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 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. As used in this section, "person" has the same
meaning as elsewhere in the Administrative Procedure Act.
The rule applies to interested persons who "make or knowingly cause
to be made" an ex parte communication. The latter phrase contem-
plates indirect contacts which the interested person approves or ar-
ranges. 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
knowingly causing an ex parte contact.
Contacts are prohibited with any agency members, administrative
law judge, or other employee who is or may reasonably be expected
to be involved in the agency's deliberations. The words "may reason-
ably be expected" make it clear that absolute certainty is not re-
quired when predicting whether an agency employee will be involved
in the decisional 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 proceeding, a list of officials expected to be
involved in the decisional process. The exparte 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.
20
The subsection prohibits an ex parte communication only when it is
"relevant 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 reports, which
will not have any effect on the way the case is decided. It excludes
general background discussions about an entire industry which do
not directly relate to specific ageny adjudication involving a member
of that industry, or to formal rulemaking involving the industry 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 communica-
tion containing such data does not directly discuss the merits of a
pending adjudication it is not prohibited by this section.
However, 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 agency's decision on the merits. In doubtful cases the agency offi-
cial should treat the communication as ex parte SO as to protect the
integrity of the decisionmaking process.
The bill also prohibits agency officials who are or who may be in-
volved in the decisional process from engaging in an ex parte contact
with an interested person. It embodies the same standards as are pro-
vided in paragraph (A) of new subsection (d) (1) of section 557 con-
cerning persons outside the agency.
If an ex parte communication is made or received by an agency
official, he must place on the proceeding's public record: (1) any
illegal written communication, (2) a memorandum stating the sub-
stance of any illegal oral communication, and (3) any oral or written
statements made in response to the original ex parte communication.
The "public record" of the proceeding means the public docket or
equivalent file containing all the material 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 eliminated. Agency officials who make an ex parte contact
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 reord will not, in fact, pro-
vide sufficient notice to all the parties. In the Senate report (Sen.
Rpt. 94-354) on S. 5 it was suggested that in such cases each agency
should consider requiring by regulation that in certain cases actual
notice of the ex parte communication be provided all parties.
An officer presiding over the agency hearings in the proceedings
may require a party who makes a prohibited ex parte communica-
tion to show cause why his claim or interest in the proceeding should
not be dismissed, denied, disregarded or otherwise aversely affected
because of the violation. This provision parallels the amendment pro-
vided in section 4(c) of the bill to section 556(d), which authorizes
an agency to consider a violation of this section as grounds for rul-
21
ing against a party on the merits. The new language insures that the
record of the proceeding contains adequate information about the vio-
lation. The presiding officer 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.
The presiding officer should require such a showing only if consist-
ent with the interests of justice and the policy of the underlying stat-
utes. Thus a showing should be required where, among other factors,
there will be shown to have been made knowingly, but not where the
violation was clearly inadvertent.
The bill provides that the prohibitions against ex parte communica-
tions apply as soon as a proceeding is noticed for a hearing. However,
if a person initiating a communciation 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 may
require that the provisions of this section apply at any point in the
proceedings prior to issuance of the notice of hearings.
Subsection (c) of section 4 of the bill adds a definition of "ex parte
communication" to the definitions contained in the Administrative
Procedure Act in section 551 of title 5. The term means 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 ad-
vance notice is given, it should be adequate to permit other parties to
prepare a possible response and to be present when the communica-
tion is made. "Public record" means the docket or other public file con-
taining all the material relevant to the proceedings. It includes, but
is not limited to, the transcript of the proceedings, material that has
been accepted as evidence in the proceeding, and the public file of re-
lated matters not accepted as evidence in the proceeding. An individual
who writes a letter concerning the merits of the proceeding to a com-
missioner, 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 com-
munication. However, a party who wrote the same letter and sent it
only to a commissioner, would have committed a violation of the sec-
tion even if the commissioner subsequently placed the letter in the
public record.
Subsection (c) of section 4 of the bill amends section 556 (d) of title
5, so as to authorize an agency to render a decision adverse to a party
violating the prohibition against ex parte communications. It is in-
tended that this provisioin apply to both formal parties, and to inter-
venors 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 a nillegal ex parte communication, or to pro-
hibit an attorney who violates the section from practicing before the
agency. Such an adverse decision must be "consistent with the interests
of justice and the policy of the underlying statutes." The Senate Re-
port noted that one example would be an instance in which the inter-
ests 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
22
of relatively equal merit, an agency may rule against a party who ap-
proached an agency head in an ex parte manner in an effort to win
approval of his license.
The subsection specifies that an agency may rule against a party for
making an ex parte communication only where the party made the
illegal contact knowingly. An inadvertent ex parte contact must still
be remedied by placing it on the public record. If the agency believes
that such an unintentional ex parte contact has irrevocably tainted the
proceeding, it may require the parties to make a new record. However,
an agency should not definitively rule against a party simply because
of an inadvertent violation.
COMMITTEE VOTE
On April 6, 1976, the Full Committee on the Judiciary approved the
bill H.R. 11656 by voice vote.
CONCLSION
The Committee has concluded that the facts developed in the hear-
ings on the bill and as outlined in this report demonstrate the need for
legislative action with reference to meetings of the agencies covered
by the provisions of the bill. It is recommended that the amended bill
be considered favorably.
COST
(Rule XII (7) (a) (1) of the House Rules)
The bill does not provide for any specific new government programs.
As has been outlined in the report, the bill concerns amendments to the
law concerning administrative procedures and adds new language con-
cerning ex parte communications in connection with adjudication and
formal rule making. Other than outlined below and in the Budget
Office estimate it is not contemplated that those procedural changes
will add significant cost to government activity.
The ex parte provisions of the legislation should result in no addi-
tional costs.
Most of the costs incurred in connection with the open meeting pro-
visions will be for the clerical and administrative work they require,
and it is estimated that such costs will be minimal.
Under the bill, the agency meetings open to the public will not re-
quire 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 avail-
able to the public. (As provided in the bill, a member of the public
desiring his own set of the minutes will bear the expense of copying,
unless the agency deems it is in the public interest to supply them with-
out cost.) The only other cost of an open meeting under this legisla-
tion is that of the public announcement.
An agency closing a portion of a meeting will have to make a tran-
script or electronic recording thereof. There will be approximately 50
covered agencies and the cost should therefore be directly proportional
to the number of closed meetings. This cost could be further reduced
if an electronic recording device, rather than stenographic notation,
23
is used. The cost of electronic recording equipment is 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.
STATEMENT UNDER CLAUSE 2(1) (3) AND CLAUSE 2(1) (4) OF RULE XI
OF THE RULES OF THE HOUSE OF REPRESENTATIVES
A. OVERSIGHT STATEMENT
This report embodies the findings and recommendations of the Sub-
committee on Administrative Law and Governmental Relations pur-
suant to its oversight responsibility over administrative procedures of
the Federal Government and its jurisdiction over the Administrative
Procedure Act as codified in title 5, United States Code, pursuant to
the procedures relating to oversight under Rule VI (b) of the Rules of
the Committee on the Judiciary, and the committee has determined
that legislation should be enacted as set forth in the amended bill.
B. BUDGET STATEMENT
As has been indicated in the committee statement as to cost made
pursuant to Rule XIII (7) (a) (1) the bill concerns administrative
procedure and requirements concerning meetings of the agencies cov-
ered by the bill. Other than as required by the items of expense re-
ferred to in the attached estimate of the Congressional Budget Office,
the bill should not involve new budget authority or require apprecia-
ble new or increased tax expenditures as contemplated by Clause 2 (1)
(3) (B) of Rule XI.
C. ESTIMATE OF THE CONGRESSIONAL BUDGET OFFICE
The estimate or comparison was received from the Director of the
Congressional Budget Office, as referred to in subdivision (C) of
Clause 2(1) (3) of House Rule XI, by the Commission on Government
Operations and is set forth below. Unless otherwise stated, all figures
represent 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 tenta-
tive since the number of recording devices it will be necessary 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 start-
ing date of July 1, 1977, the budget impact would be :
Transition quarter
1 62, 500
Fiscal year 1977
130, 000
Fiscal year 1978
2 138, 000
Fiscal year 1979
145, 000
Fiscal year 1980
152, 000
Fiscal year 1981
160, 000
1 $30,000 for recording devices, 25 percent of $130,000 in personnel costs.
3 Salaries are tied to the changes in the CPI at a 5-percent real growth rate in GNP.
24
Basis of Estimate
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 average salary of
$10,000 annually. If Congressional expectations that there will be few
closed meetings are realized, this estimate 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.
D. OVERSIGHT FINDINGS AND RECOMMENDATIONS OF THE COMMITTEE ON
GOVERNMENT OPERATIONS
No findings or recommendations of the Committee on Government
Operations were received as referred to in subdivision (D) of clause
2(1) (3) of House Rule XI, however, the committee did have the ad-
vantage of the material contained in that Committee's legislative re-
port, H. Rept. No. 94880, Part I, on this bill.
Inflationary Impact
In compliance with clause (1) (4) of House Rule XI it is stated
that enactment of this legislation will have no inflationary impact on
prices and costs in the operation of the national economy. The bill pro-
vides for the procedural matters referred to above. It does not provide
for any new programs.
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
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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.
25
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 II-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. Organizations of the Conference.
576. Appropriations.
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SUBCHAPTER I-ADMINISTRATIVE PROCEDURE
§ 551. Definitions
For the purpose of this subchapter-
(1)
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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.
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§ 552. Public information; agency rules, opinions, orders records,
and proceedings
(a)
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(b) This section does not apply to matters that are-
(1)
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[(3) specifically exempted from disclosure by statute
(3) required or permitted to be withheld from the public by
any statute establishing particular criteria or referring to partiou-
lar types of information;
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26
§ 552b. Open Meetings
(a) For purposes of this section-
(1) the 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 an assembly or simultaneous com-
munication concerning the joint conduct or disposition of agency
business by two or more, but at least the number of individual
agency members required to take action on behalf of the agency,
but does not include meetings required or permitted by subsection
(d) ; and
(3) the term "member" means an individual who belongs to
a collegial body heading an agency.
(b) (1) Members as described in subsection (a) (2) shall not jointly
conduct or dispose of agency business without complying with subsec-
tions (b) through (g).
(2) 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;
(3) disclose information required or permitted to be withheld
from the public 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 enforcement
purposes, or information which if written would be contained in
such records, but only to the extent that the production of such
records or information would (A) interfere with enforcement
proceedings, (B) deprive a person of a right to a fair trial or an
impartial adjudication, (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 enforce-
ment authority in the course of a criminal investigation, or by an
27
agency conducting a lawful national security intelligence investi-
gation, confidential information furnished only by the confidential
source, (E) disclose investigative techniques and procedures, or
(F) endanger the life or physical safety of law enforcement
personnel;
(8) disclose information contained in or related to examina-
tion, operating, or condition reports prepared by, on behalf of, or
for the use of an agency responsible for the regulation or super-
vision of financial institutions;
(9) disclose information the premature disclosure of which
would-
(4) in the case 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 after
the content or nature of the proposed agency action has been
disclosed to the public by the agency, unless the agency is
required by law to make such disclosure prior to taking final
agency action on such proposal, or after the agency publishes
or serves a substantive rule pursuant to section 553 (d) of this
title; or
(10) specifically concern the agency's issuance of a subpena, or
the agency's participation in a civil action or proceeding, an action
in a foreign court or international tribunal, or an arbitration, or
the initiation, conduct, or disposition by the agency of a partiou-
lar case of formal agency adjudication pursuant to the procedures
in section 554 of this title or otherwise involving a determination
on the record 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 with respect to each agency meet-
ing a portion or portions of which are proposed to be closed to the
public pursuant to subsection (c). A single vote 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 information 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
thirty 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. If a portion of
a meeting is to be closed to the public, the agency shall, within one day
28
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 of all persons expected to attend the
meeting and their affiliation.
(4) Any agency, a majority 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 regula-
tion for the closing of such meetings or portions thereof 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
portion 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 official 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 and 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 80 requires and that no earlier an-
nouncement 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 commence-
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 compete 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 determines to contain information specified
in paragraphs (1) through (10): of subsection (c). Copies of such
29
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 ver-
batim 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 conclu-
sion of any agency proceeding with respect to which the meeting, 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.
(g) 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 Office of the Chairman of 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. Any person
may bring a proceeding in the United States District 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.
(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 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 require-
ments of this section, such action may be instituted pursuant to this sec-
tion at any time prior to sixty days after any public announcement of
such meeting. Such actions may be brought in the district court of the
United States for the district in which the agency meeting is held, or
in the District Court for the District of Columbia, 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 de-
fendant to sustain his action. In deciding such cases the court may ex-
amine 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 admin-
istration and the public interest, as well as the interests of the party,
30
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 available to the public such portion of
the transcript or electronic recording of a meeting as is not authorized
to be withheld under subsection (c) 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) 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) or (h) of this section, except that costs
may be assessed against the plaintiff only where the court finds that
the suit was initiated by the plaintiff primarily for frivolous or dila-
tory purposes. In the case of assessment of costs against an agency, the
costs may be assesed by the court against the United States.
(j) 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).
(k) Except as specifically provided in this section, nothing herein
expands or limits the present rights of any person under section 552
of this title, except that the provisions of this Act shall govern in
the case of any request made pursuant to such action to copy or inspect
the transripts or electronic recordings described in subsection (f) of
this section. The requirements of chapter 33 of title 44, United States
Code, shall not apply to the transcripts and electronic recordings de-
scribed in subsection (f) of this section.
(l) This section does not constitute authority to withhold any in-
formation from Congress, and does not authorize the closing of any
agency meeting or portion thereof otherwise required by law to be
open.
(m) 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.
(n) 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
31
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.
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§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-
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 may reasonably be
expected to be involved in the decisional process of the proceeding,
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;
(0) 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 of 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 caused to be made by a party or interested per-
son, 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
32
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 affected 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 case
the prohibitions shall apply beginning at the time of his acquisi-
tion of such knowledge.
(2) This section does not constitute authority to withhold informa-
tion from Congress.
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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, including the provisions of chapters 5
and 7 of title 5, shall apply to the exercise of the powers of the Postal
Service.
(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 con-
duct of employees), and section 5532 (dual pay) of title 5, except
that no regulation issued under such chapters or sections shall
apply to the Postal Service unless expressly made applicable;
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OVERSEAS PRIVATE INVESTMENT CORPORATION,
Washington, D.C., April 5, 1976.
Hon. PETER W. RODINO, Jr.,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, D.C.
DEAR MR. CHAIRMAN: The Overseas Private Investment Corpora-
tion (OPIC) offers the following additional comments regarding H.R.
11656, the Government in the Sunshine Act (the "bill").
Comments by OPIC regarding the bill were previously submitted
to the Subcommittee on Government Information and Individual
Rights, Committee on Government Operations, by letter dated Novem-
ber 26, 1975, a copy of which is included in the report of the hearings
before the Subcommittee. As the bill was referred from the Govern-
ment Operations Committee, there were several provisions that were
of serious concern to OPIC. We believe some of these provisions have
been improved. Nevertheless, the following matters remain of serious
concern to us.
33
COMMENTS OF SPECIFIC PROVISIONS
1. Closing Mettings by Regulation.-Section 3 (d) (4) of the bill au-
thorizes agencies to adopt regulations for the closing of portions of
meetings whenever a majority of the meetings of such agency may
properly be closed to the public pursuant to paragraphs (4), (8), (9)
(A) or (10) of Subsection (c). This section does not authorize the
adoption of such regulations whenever the majority of such meetings
would properly be closed under paragraph (1) i.e., whenever such
meetings would involve the discussion of information kept secret for
reasons of national security. OPIC believes that this is an error that
should be corrected.
Of the forty-seven agencies that the Senate Report identifies as
being subject to the provisions of section 201 (section 3 of the com-
panion bill), only a small minority would have the need to use with
any frequency information classified for reasons of national security
OPIC is one of the few such agencies which need to use classified
information to the extent that a substantial portion of its meetings
would be closed because the meetings would involve discussions of
classified information.
OPIC's functions are an integral part of the foreign relations of
the United States. Information properly kept secret for reasons of
foreign relations is discussed in most meetings of OPIC's Board of
Directors in connection with the Board's determination of policy issues
with respect to OPIC's operations, the review of policy issues in proj-
ects to be considered by the Board of Directors and the review of
events regarding actual or potential claims under OPIC insurance
contracts or events that would affect an OPIC-financed project.
Since the majority of the meetings of OPIC's Board of Directors,
or portions thereof, could properly be closed to the public for reasons
of national security, OPIC's inability to adopt regulations pertain-
ing to the closing of meetings under such circumstances would consti-
tute an additional and unwarranted administrative burden. This is
especially true because the need to discuss classified information can-
not regularly be predicted in advance of a scheduled meeting, may
necessitate special meetings on short notice, and, in the case of meet-
ings of OPIC's Board of Directors, may not arise until after the meet-
ing commences.
2. Requirement of a Verbatim Transcript of Closed Meetings.-
OPIC still objects to the inclusion in the bill of the provisions requir-
ing that a mandatory transcript be made of each meeting, or portion
thereof, closed to the public. As long as the transcript requirement
remains, the provisions of the bill permitting the closure of meetings
do not provide adequate protection from public disclosure of informa-
tion discussed at meetings. The exemptions merely provide standards
to be used in determining whether any information to be discussed
at a meeting is of such a nature as to justify withholding it from the
public. Since the bill provides for de novo review by the courts, a
judge could overrule an agency's determination (for instance, in the
case of privileged business information) that such information is
privileged even though it was furnished to the agency and discussed
at a meeting on the assumption that information and the discussion
34
would not become available to others. This risk will clearly be a de-
terrent to full and free discussion of sensitive issues which the bill pur-
ports to protect.
Furthermore, in view of the fact that classified information, con-
fidential business information and matters with respect to potential
adjudication of claims would be discussed regularly at meetings of
OPIC's Board of Directors, the costs of preparing a verbatim trans-
script of such meetings, or of editing any transcript or summary in
order to delete discussions of sensitive materials, would be very
high and burdensome. We have already provided information with
respect to the administrative burden involved to the various Com-
mittees that have considered this matter.
As a workable alternative to the requirement for a verbatim tran-
script of all closed meetings or portions thereof, OPIC recommends
an approach similar to that adopted by the Senate and the House in
applying the open meeting concept to their own proceedings. Thus,
for instance, a majority of a Committee may vote both to close one
of its meetings to the public and either to have such closed meeting
transcribed or not. To impose a more stringent requirement on the
Executive Branch would result in a double standard of openness, one
of flexibility for the Congress and the other of rigidity for executive
agencies.
GENERAL COMMENTS
For the reasons set forth in pages 1 to 3 of our letter of Novem-
ber 26, 1975, to the Subcommittee on Government Information and
Individual Rights, Committee on Government Operations, we reiter-
ate our view that it is, in any event, inappropriate to include OPIC
within the scope of the bill. OPIC is not a regulatory agency. It oper-
ates more like a private financial institution than a government
agency. OPIC's Board of Directors must be free to examine and can-
didly discuss, as would the Board of Directors of a private financial
institution, all aspects of underwriting policy, applications pending
before the Board for insurance or financing, and matters concerning
insurance claims. Involved in these discussions are candid assessments
of individuals, companies and events and the liberal use of privileged
business information and governmental information kept secret for
reasons of foreign relations. Such discussions must be carried out in a
confidential manner that is not adequately protected by the bill.
The requirement that a verbatim transcript must be maintained
within respect to any closed meeting, and that any person may sue
to obtain access to any such transcript, would result in the ever-present
concern of the private sector entities who deal with OPIC as well as
of participants in meetings of OPIC's Board, that a judge could later
hold that matters either given or spoken with the understanding that
they be treated in confidence were not entitled to such protection.
Such a concern, particularly among OPIC's private Directors, and
among the private companies with which OPIC deals, will inevitably
result in less than a full and free exchange of ideas, and could mate-
rially undermine the Congressional mandate that OPIC achieve
greater private participation in its programs.
Sincerely yours,
GERALD D. MORGAN, Jr.,
Vice President and General Counsel.
35
U.S. CIVIL SERVICE Commission,
Washington, D.C., April 5, 1976.
Hon. PETER W. RODINO, Jr.,
Chairman, Committee on the Judiciary, House of Representatives,
Washington, D.C.
DEAR MR. CHAIRMAN: The Civil Service Commission is herewith
submitting a voluntary report on H.R. 11656, a bill "To provide that
meetings of Government agencies shall be open to the public, and for
other purposes," cited as the "Government in the Sunshine Act."
The Commission submitted a similar report to the Subcommittee on
Administrative Law and Government Relations but we understood
that the Subcommittee was not able to reach the Commission's pro-
posed amendment to the bill. We accordingly again urge amendment
to H.R. 11656 based on the considerations stated herein.
Unlike certain other central agencies designed to service the Federal
Government, such as the General Services Administration, the Com-
mission is a three-member body. But, unlike most such multi-headed
Commissions, the Civil Service Commission does not regulate any
segment of the economy affecting the general public. The Commission's
primary mission is to provide leadership and regulatory direction to
the central personnel programs of the executive branch.
The drafters and sponsors of H.R. 11656 recognized that agency
internal personnel matters are not of direct interest to the general
public and have no direct impact on the public sector. Therefore, they
provided an exemption in the bill from the public meeting require-
ments. The Commission strongly supports this exemption, but urges
that it be modified to apply not just to individual agency personnel
programs but also to inter-agency personnel programs administered
by the Civil Service Commission. Just as the separate parts are now
exempt-so, too, should be the whole.
The exemption should be extended to Government-wide personnel
rules and practices to meet the need of the Commission to continue to
carry out its internal Governmental personnel management responsi-
bilities as efficiently and effectively as possible. In addition, the Com-
mission's meetings concerning Government-wide policies and programs
in labor-management relations as well as agency labor-management
relations should be included in this exemption. We do not believe that
the decision-making process in regard to agency and Government-wide
labor-management relations strategy and negotiation considerations
should be exposed to public view and particularly the view of those
with whom we will be negotiating. The Commission and other agencies
could hardly adopt flexible negotiating positions when the fall-back
positions and strategies have been discussed and decide in public ses-
sions attended by both parties to the negotiations.
Accordingly, we respectfully urge that the exemption to open meet-
ings in proposed section 552b (c) (2) of title 5, United States Code, in
H.R. 11656 be amended to read as follows: "(2) relate to the internal
personnel rules and practices or labor-management relations policy of
an agency or to Government-wide personnel rules and practices or to
Government-wide labor-management relations policy;
By direction of the Commission:
Sincerely yours,
ROBERT E. HAMPTON,
Chairman.
ADDITIONAL VIEWS OF HON. CARLOS J. MOORHEAD
AND HON. THOMAS N. KINDNESS (CONCURRED IN BY
HON. EDWARD HUTCHINSON, HON. HENRY J. HYDE,
HON. HAMILTON FISH, JR., AND HON. WILLIAM S.
COHEN)
INTRODUCTION
We fully support the principle that governmental decisionmaking
should be as open to public scrutiny as is Constitutionally and prac-
tically possible. An informed public is an essential element in as-
suring the effectiveness and viability of the American system of
government.
We have no quarrel with the stated purpose of the "Government in
the Sunshine Act". Furthermore, we are greatly encouraged by the
changes made in H.R. 11656 by the Subcommittee on Administrative
Law and Governmental Relations, as agreed to by the full Committee
on the Judiciary. As amended, this legislation is less ambiguous less
likely to produce extensive litigation, and less likely to impose un-
realistic and unfair burdens on the ability of government agencies
to perform the functions for which they were created. There still
remains, however, considerable room for improvement.
THE DEFINITION OF AGENCY
The definition of "agency" should be made more specific. In defining
"agency" in subsection (a) (1) of section 3, the bill relies, first, upon the
definition of "agency" as it is found in the amended Freedom of In-
formation Act, 5 U.S.C. 552 (e). The FOIA definition, in turn, is
based largely on the definition of 'agency' as it is contained in the
Administrative Procedure Act, 5 U.S.C. 551 (a). Then subsection
(a) (1) makes the additional qualification that it extends only to those
Federal agencies headed by "collegial bodies composed of two or more
members, a majority of whom are appointed to such position by the
President with the advice and consent of the Senate." Panels, Regional
Boards, and other subdivisions authorized to act on behalf of an
agency are also intended to be covered by this definition.
Administration witnesses appearing before our Committee argued
that the definition of "agency", as it now stands, is unclear in its scope
and can only result in extensive litigation. In testimony before our
Committee, Deputy Attorney General Tyler noted that recent cases
reflect a confusion about the scope of the definition of "agency", both
in the APA and the FOIA. See: Renegotiation Board V. Grumman
Aircraft. 421 U.S. 168, 187-8 (1975) ; Soucie V. David, 448 F. 2d
1067, 1075 (D.C. Cir., 1971) Washington Research Project, Inc., V.
H.E.W., 504 F.2d 238, 245-8 (D.C. Cir., 1974). These decisions sug-
gest that administrative entities may be "agencies" for some but not
(37)
38
all purposes, depending on the particular function they're performing
in a particular instance.
A listing of those agencies which Congress specifically intends to
cover by this legislation seems to us to be an exact and logical manner
in which to proceed. The inclusion of such a list, as an alternative to
a generalized definition, would avoid any confusion as to which agen-
cies are covered and would minimize litigation. Such an approach
was taken in the Government Corporation Act of 1945, 31 U.S.C. 841
et. seq., where there was a similar problem of entities not easily de-
fined in one statutory phrase.
THE DEFINITION OF MEETING
The definition of 'meeting' in subsection (a) (2) is another problem
area. We are particularly concerned about the language inserted by
the full Judiciary Committee, which is troublesome for two reasons.
First, the new definition does not contain the "purpose" test agreed
to by the Administrative Law Subcomittee. So, instead of reading "a
gathering to jointly conduct or dispose of agency business
.", the
definition now reads: "an assembly or simultaneous communication
concerning the joint conduct or disposition of agency business
"
The new language leaves open the possibility that this Act could apply
to casual or social encounters, where agency business might be dis-
cussed. It also could apply to a situation where one agency member
gives a speech concerning agency business with other agency members
present in the audience.
Second, this new definition also extends to "simultaneous communi-
cation (s) of agency members. This is an obvious attempt to bring
conference telephone calls within the ambit of the definition. That in-
tention had previously been rejected in Subcommittee. How, one may
ask, can a telephone conversation be viewed as a public meeting ? 'Meet-
ing', within the terms of the Sunshine legislation should be limited
to an actual "gathering" of agency members in a single, physical loca-
tion for the sole purpose of conducting official agency business.
EXEMPTION PROCEDURES
Subsection (d) (1) requires a majority vote of the entire membership
of the agency for any meeting to be closed pursuant to the exemptions
listed in subsection (c) (1)-(10). In many cases, regulatory agencies
are permitted by statute to adopt procedures by which sub-groups or
panels can be delegated the responsibility to take action on behalf of
the entire agency. See, for example, the Communications Act Amend-
ments of 1952. 47 U.S.C. $ 155 (d). Why then, if a subdivision can act
on behalf of an agency in substantive, policy matters, shouldn't it
also be able to close meetings? The provision elevates procedure to a
position of greater importance than the substantive, policy delibera-
tions for which the meetings are to be held. As the bill is now written,
a majority of the entire agency board or commission would have to
convene to close the meetings of such panels or subdiviisons. We sup-
port the deletion of the phrase "a majority of the entire membership
of" from subsection (d) (1) of the bill.
39
JUDICIAL REVIEW
We are also deeply concerned about granting "any person" the right
to sue to enforce the provisions of the Sunshine Act. Subsection (h)
permits any individual, irrespective of the usual standing require-
ments, to bring an action in a U.S. District Court to enjoin or remedy
violations of any of the substantive provisions of the Act. There is
serious question whether or not by doing away with normal Federal
court standing requirements, that H.R. 11656 violates the "case and
controversy" requirements of Article 3 of the Constitution. Further-
more, the encouragement of litigation on such a broad scale can only
serve to seriously interfere with the efficient administration of gov-
ernment. Subsection (h) should be amended SO as to require that a
plaintiff makes some showing of specific harm to his interests.
Subsection (h) also contains a provision requiring that the defend-
ant (the government) must serve his answer to a complaint within 20
days (an additional 20 days may be allowed by the court on a showing
of "good cause"), instead of the 60 days normally allowed. This ac-
celerated answer provision has its origins in the Senate bill (S. 5).
However, the Senate version also required that, before instituting a
suit, the plaintiff must first notify the agency and give it a reasonable
time (up to ten days) to rectify the violation. No comparable notifica-
tion requirement is present in the House bill. There can be no question
but that a notice provision would alleviate the volume of litigation en-
couraged by this Act. If the accelerated answer provision is to remain
in H.R. 11656, then the notification requirement present in the Senate
bill should also be included in this legislation as a matter of funda-
mental fairness.
SUMMARY
Again, we support the purposes of H.R. 11656, but still retain serious
reservations about the advisability and practicality of certain of its
key provisions. We retain the hope that further improvements can be
made, when this legislation is considered on the House Floor.
CARLOS J. MOORHEAD.
THOMAS N. KINDNESS.
HENRY J. HYDE.
EDWARD HUTCHINSON.
HAMILTON FISH.
WILLIAM S. COHEN.
SUPPLEMENTAL VIEWS OF HON. EDWARD HUTCHIN-
SON AND HON. ROBERT McCLORY (CONCURRED IN BY
HON. THOMAS N. KINDNESS, HON. HENRY J. HYDE,
AND HON. JOHN M. ASHBROOK)
We are deeply concerned about the scope of the verbatim tran-
script requirement found in subsection (f) (1) of H.R. 11656. Implicit
in this provision is the ill-founded belief that the public somehow has
an inherent right to know everything about governmental delibera-
tions, no matter what their content or the potential harm of public
disclosure.
The American people certainly have legitimate interest in know-
ing how governmental decisions are made. However, this "right to
know" has never been and cannot be viewed as an absolute. It must
be modified, for example, by such competing interests as: (1) the
national security; (2) Constitutional right of personal privacy; (3)
the need for economic stability and security and (4) law enforcement
effectiveness and efficiency. This legislation requires that all agencies
which come under the scope of the Sunshine bill make a complete
transcript or electronic recording of all of their proceedings. This
requirement would extend even to those meetings, validly closed pur-
suant to the exemptions noted in subsection (c) (1-10). So, for ex-
ample, a complete record must exist for all closed meetings of the
Federal Reserve Board and Securities and Exchange Commission,
no matter how sensitive the content or how damaging unwarranted
disclosure could be.
First, we object to the imposition of an across-the-board transcript
and electronic recording requirement. We object because of the very
practical and real possibility that privileged subject matter could
easily be leaked. Second, as written, this provision leaves the decision
regarding disclosure of the complete transcript of a closed meeting
solely up to the agencies in question. This discretion leaves room for
arbitrary and tyrannical disregard of individual rights by a majority
vote in a bureaucracy.
There are practical objections as well. Since the provision clearly
leaves open the possibility of subsequent disclosure of a complete
transcript of a closed meeting, the likelihood is that the free exchange
of ideas between agency members about sensitive policy matters will
be greatly hampered. This requirement can only be viewed as poten-
tially impairing the decision-making processes of government.
Proponents argue that a complete transcript of closed meetings
must be retained by the agency SO that it will be available for an
"in camera" review of a judge, should litigation of the appropriate-
ness or contents of a closed meeting develop. Discovery procedures
available in Federal courts have never depended upon the availability
of verbatim transcripts or electronic recordings of agency meetings.
Furthermore, this attitude is evidence of Congress once again dele-
(41)
42
gating to the courts the power to make a decision on a policy question
that is properly within our prerogatives.
We strongly feel that Congress would be ill-advised to pass H.R.
11656 containing this damaging transcript requirement. The desperate
attempt to appear "open" at all costs, can only result in the diminu-
tion of the rights and expectations of the citizens we seek to serve.
EDWARD HUTCHINSON.
ROBERT McCLoRY.
THOMAS N. KINDNESS.
HENRY J. HYDE.
JOHN A. ASHBROOK.
SUPPLEMENTAL VIEWS OF HON. EDWARD
MEZVINSKY, HON. JOHN SEIBERLING
We think that this is an excellent bill, though we regret certain
weakening amendments made by the Administrative Law and Gov-
ernmental Relations Subcommittee and adopted by the full Judiciary
Committee. We believe that one such change is of particular impor-
tance, and it is to this change that our supplemental views are specifi-
cally addressed.
The bill, as originally considered by the Committee on Government
Operations and its Government Operations and Individual Rights
Subcommittee, required that when a deletion of exempt material was
made from a meeting transcript, the agency was to explain the reason
and statutory authority for the deletion and provide a summary or
paraphrase of the deleted material. The Government Information and
Individual Rights Subcommittee, in a compromise move, dropped the
requirement of a summary or paraphrase, leaving only the require-
ment that a statement of the reason and the statutory basis for the
deletion be set forth.
Our Subcommittee on Administration Law and Governmental Re-
lations further amended the bill by dropping even the requirement for
a statement of the reason and statutory authority for the deletion, and
the full Judiciary Committee concurred in this amendment. The effect
of this change is to leave only a blank space where material is deleted,
providing not even a hint of what has been removed, or by what
authority.
This would leave a citizen interested in what had occurred at a meet-
ing entirely in the dark about what has been deleted. To provide the
reason and the applicable statute would impose no significant burden
upon the administrative agency, while supplying-as is generally re-
quired with respect to agency decisions-the reason for the agency
action. We note that a similar explanation is required under the Fed-
eral Advisory Committee Act. The absence of even this simple expla-
nation is likely to generate unnecessary litigation from citizens who
do not know the reason for the deletion, thus wasting the taxpayers'
time and money in defending needless actions.
We believe that the people's right to know, as expressed in this legis-
lation, includes the right to be given the reason why they are prevented
from having information about agency action. We believe that the
compromise version of this provision that was adopted by the Com-
mittee on Government Operations properly balanced the right to know
against the need to keep certain matters secret and urge that the com-
promise language be reinstated.
EDWARD MEZVINSKY.
JOHN SEIBERLING.
(43)
SUPPLEMENTAL VIEWS OF HON. BOB KASTENMEIER
We think that this is an excellent bill, though we regret certain
weakening amendments made by the Administrative Law and Gov-
ernmental Relations Subcommittee and adopted by the full Judiciary
Committee. We believe that one such change is of particular impor-
tance, and it is to this change that our supplemental views are specifi-
cally addressed.
The bill, as originally considered by the Committee on Government
Operations and its Government Operations and Individual Rights
Subcommittee, required that when a deletion of exempt material was
made from a meeting transcript, the agency was to explain the rea-
son and statutory authority for the deletion and provide a summary
or paraphrase of the deleted material. The Government Information
and Individual Rights Subcommittee, in a compromise move, dropped
the requirement of a summary or paraphrase, leaving only the require-
ment that a statement of the reason and the statutory basis for the
deletion be set forth.
Our Subcommittee on Administrative Law and Governmental Re-
lations further amended the bill by dropping even the requirement for
a statement of the reason and statutory authority for the deletion,
and the full Judiciary Committee concurred in this amendment. The
effect of this change is to leave only a blank space where material is
deleted, providing not even a hint of what has been removed, or by
what authority.
This would leave a citizen interested in what had occurred at a
meeting entirely in the dark about what has been deleted. To provide
the reason and the applicable statute would impose no significant bur-
den upon the administrative agency, while supplying-as is generally
required with respect to agency decisions-the reason for the agency
action. We note that a similar explanation is required under the Fed-
eral Advisory Committee Act. The absence of even this simple explana-
tion is likely to generate unnecessary litigation from citizens who do
not know the reason for the deletion, thus wasting the taxpayers' time
and money in defending needless actions.
We believe that the people's right to know, as expressed in this leg-
islation, includes the right to be given the reason why they are pre-
vented from having information about agency action. We believe that
the compromise version of this provision that was adopted by the
Committee on Government Operations properly balanced the right
to know against the need to keep certain matters secret and urge that
the compromise language be reinstated.
BoB KASTENMEIER.
(45)
SUPPLEMENTAL VIEWS OF HON. JACK BROOKS AND
HON. ELIZABETH HOLTZMAN
We think that this is an excellent bill, though we regret certain
weakening amendments made by the Administrative Law and Gov-
ernmental Relations Subcommittee and adopted by the full Judiciary
Committee. We believe that one such change is of particular import-
ance, and it is to this change that our supplemental views are speci-
fically addressed.
The bill, as originally considered by the Committee on Govern-
ment Operations and its Government Operations and Individual
Rights Subcommittee, required that when a deletion of exempt ma-
terial was made from a meeting transcript, the agency was to explain
the reason and statutory authority for the deletion and provide a
summary or paraphrase of the deleted material. The Government
Information and Individual Rights Subcommittee, in a compromise
move, dropped the requirement of a summary or paraphase, leaving
only the requirement that a statement of the reason and the statutory
basis for the deletion be set forth.
Our Subcommittee on Administrative Law and Governmental Re-
lations further amended the bill by dropping even the requirement
for a statement of the reason and statutory authority for the deletion,
and the full Judiciary Committee concurred in this amendment. The
effect of this change is to leave only a blank space where material
is deleted, providing not even a hint of what has been removed, or
by what authority.
This would leave a citizen interested in what had occurred at a
meeting entirely in the dark about what has been deleted. To provide
the reason and the applicable statute would impose no significant
burden upon the administrative agency, while supplying-as is gen-
erally required with respect to agency decisions-the reason for the
agency action. We note that a similar explanation is required under
the Federal Advisory Committee Act. The absence of even this simple
explanation is required under the Federal Advisory Committee Act.
The absence of even this simple explanation is likely to generate un-
necessary litigation from citizens who do not know the reason for the
deletion, thus wasting the taxpayers' time and money in defending
needless actions.
We believe that the people's right to know, as expressed in this
legislation, includes the right to be given the reason why they are
prevented from having information about agency action. We believe
that the compromise version of this provision that was adopted by
the Committee on Government Operations properly balanced the
right to know against the need to keep certain matters secret and
urge that the compromise language be reinstated.
JACK BROOKS.
ELIZABETH HOLTZMAN II.
(47)
SUPPLEMENTAL VIEWS OF HON. JOHN CONYERS
We think that this is an excellent bill, though we regret certain
weakening amendments made by the Administrative Law and Gov-
ernmental Relations Subcommittee and adopted by the full Judiciary
Committee. We believe that one such change is of particular impor-
tance, and it is to this change that our supplemental views are specifi-
cally addressed.
The bill, as originally considered by the Committee on Government
Operations and its Government Operations and Individual Rights
Subcommittee, required that when a deletion of exempt material was
made from a meeting transcript, the agency was to explain the reason
and statutory authority for the deletion and provide a summary or
paraphrase of the deleted material. The Government Information and
Individual Rights Subcommittee, in a compromise move, dropped the
requirement of a summary or paraphrase, leaving only the requirement
that a statement of the reason and the statutory basis for the deletion
be set forth.
Our Subcommittee on Administrative Law and Governmental Re-
lations further amended the bill by dropping even the requirement for
a statement of the reason and statutory authority for the deletion, and
the full Judiciary Committee concurred in this amendment. The effect
of this change is to leave only a blank space where material is deleted,
providing not even a hint of what has been removed, or by what
authority.
This would leave a citizen interested in what had occurred at a
meeting entirely in the dark about what has been deleted. To provide
the reason and the applicable statute would impose no significant bur-
den upon the administrative agency, while supplying-as is generally
required with respect to agency decisions-the reason for the agency
action. We note that a similar explanation is required under the Fed-
eral Advisory Committee Act. The absence of even this simple ex-
planation is likely to generate unnecessary litigation from citizens
who do not know the reason for the deletion, thus wasting the tax-
payers' time and money in defending needless actions.
We believe that the people's right to know, as expressed in this
legislation, includes the right to be given the reason whv thev are pre-
vented from having information about agency action. We believe that
the compromise version of this provision that was adopted by the
Committee on Government Operations properly balanced the right
to know against the need to keep certain matters secret and urge that
the compromise language be reinstated.
JOHN CONYERS.
(48)
94TH CONGRESS
SENATE
REPORT
2d Session
No. 94-1178
GOVERNMENT IN THE SUNSHINE ACT
AUGUST 27, 1976.-Ordered to be printed
Mr. CHILES, from the committee of conference, submitted the
following
CONFERENCE REPORT
[To accompany S. 5]
The committee of conference on the disagreeing votes of the two
Houses on the amendment of the House to the bill (S. 5) to provide
that meetings of Government agencies shall be open to the public,
and for other purposes, having met, after full and free conference,
have agreed to recommend and do recommend to their respective
Houses as follows:
That the Senate recede from its disagreement to the amendment
of the House and agree to the same with an amendment as follows:
In lieu of the matter proposed to be inserted by the House amend-
ment insert the following:
That this Act may be cited as the "Government in the Sunshine Act".
DECLARATION OF POLICY
SEC. 2. It is hereby declared to be the policy of the United States that
the public is entitled to the fullest practicable information regarding the
decisionmaking processes of the Federal Government. It is the purpose of
this Act to provide the public with such information while protecting
the rights of individuals and the ability of the Government to carry out its
responsibilities.
OPEN MEETINGS
SEC. 3. (a) Title 5, United States Code, is amended by adding after
section 552a the following new section:
"§ 552b. Open meetings
"(a) For purposes of this section-
"(1) the term 'agency' means 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
LIBRARY
2
position by the President with the advice and consent of the Senate,
and 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 determine or result in the joint
conduct or disposition of official agency business, but does not include
deliberations required or permitted by subsection (d) or (e); and
"(3) the term 'member' means an individual who belongs to a col-
legial body heading an agency.
(b) Members shall not jointly conduct or dispose of agency business
other than in accordance with this section. Except as provided in sub-
section (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, the second sentence of 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 that are (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 prop-
erly classified pursuant to such Executive order;
"(2) relate solely to the internal personnel rules and practices of an
agency;
"(3) disclose matters specifically exempted from disclosure by
statute (other than section 552 of this title), provided that such
statute (A) requires that the matters be withheld from the public in
such a manner as to leave no discretion on the issue, or (B) establishes
particular criteria for withholding or refers to particular types of
matters to be withheld;
"(4) disclose trade secrets and commercial or financial information
obtained from a person and privileged or confidential;
"(5) involve accusing any person of a crime, or formally censuring
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 enforcement
purposes, or information which if written would be contained in such
records, but only to the extent that the production of such records or
information would (A) interfere with enforcement proceedings, (B)
deprive a person of a right to a fair trial or an impartial adjudication,
(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 conducting a
lawful national security intelligence investigation, confidential
information furnished only by the confidential source, (E) disclose
investigative techniques and procedures, or (F) endanger the life or
physical safety of law enforcement personnel;
"(8) disclose information contained in or related to examination,
operating, or condition reports prepared by, on behalf of, or for the
3
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 case of an agency which regulates currencies,
securities, commodities, or financial institutions, be likely to
(i) lead to significant financial speculation in currencies,
securities, or commodities, or (ii) significantly 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 subparagraph (B) shall not apply in any instance where
the agency has already disclosed to the public the content or nature
of its proposed action, or where the agency is required by law to
make such disclosure on its own initiative 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 civil action or proceeding, 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 record after opportunity for a hearing.
"(d) (1) Action under subsection (c) shall be taken only when a
majority of the entire membership of the agency (as defined in subsection
(a) (1)) votes to take such action. A separate vote of the agency members
shall be taken with respect to each agency meeting a portion or portions of
which are proposed to be closed to the public pursuant to subsection (c),
or with respect to any information which is proposed to be withheld under
subsection (c). A single vote may be taken with respect to a series of
meetings, a portion or portions of which are proposed to be closed to the
public, or with respect to any information concerning such series of
meetings, so long as each meeting in such series involves the same particular
matters and is scheduled to be held no more than thirty days after the
initial 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. If 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 to-
gether with a list of all persons expected to attend the meeting and their
affiliation.
"(4) Any agency, a majority 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 of such meetings or portions thereof in the event that a majority
4
of the members of the agency votes by recorded vote at the beginning of
such meeting, or portion thereof, to close the exempt portion 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 para-
graphs (1), (2), and (3) of this subsection and subsection (e) shall not
apply to any portion of a meeting to which such regulations apply: Pro-
vided, That the agency shall, except to the extent that such information is
exempt from disclosure under the provisions of subsection (c), provide the
public with public announcement of the time, place, and subject matter of
the meeting and of each portion thereof at the earliest practicable time.
"(e) (1) In the case of each meeting, the agency shall make public
announcement, at least one week before the meeting, of the time, 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 official designated by the agency to
respond to requests for information about the meeting. Such announce-
ment shall be made unless a majority of the members of the agency deter-
mines 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 time, place, and subject matter of such meeting, and
whether open or closed to the public, at the earliest practicable time.
"(2) The time or place of a meeting may be changed following the public
announcement required by paragraph (1) only if the agency publicly
announces such change at the earliest practicable time. The subject matter
of a meeting, or the determination of the agency to open or close a meeting,
or portion of a meeting, to the public, may be changed following the public
announcement required by this subsection only if (A) a majority of the
entire membership of the agency determines by a recorded vote that agency
business so requires and that no earlier announcement of the change was
possible, and (B) the agency publicly announces such change and the vote
of each member upon such change at the earliest practicable time.
"(3) Immediately following each public announcement required by this
subsection, notice of the time, place, and subject matter of a meeting,
whether the meeting is open or closed, any change in one of the preceding,
and the name and phone number of the official designated by the agency
to respond to requests for information about the meeting, shall also be
submitted for publication in the Federal Register.
"(f) (1) For every meeting closed pursuant to paragraphs (1) through
(10) of subsection (c), the General Counsel or chief legal officer of the
agency shall publicly certify that, in his or her opinion, the meeting may be
closed to the public and shall state each relevant exemptive provision. A
copy of such certification, together with a statement from the presiding
officer of the meeting setting forth the time and place of the meeting, and the
persons present, shall be retained by the agency. The agency shall maintain
a complete transcript or electronic recording adequate to record fully the
proceedings of each meeting, or portion of a meeting, closed to the public,
except that in the case of a meeting, or portion of a meeting, closed to the
public pursuant to paragraph (8), (9) (A), or (10) of subsection (c), the
agency shall maintain either such a transcript or recording, or a set of
minutes. Such minutes shall fully and clearly describe all matters dis-
cussed and shall provide a full and accurate summary of any actions
taken, and the reasons therefor, including a description of each of the
views expressed on any item and the record of any rollcall vote (reflecting
the vote of each member on the question). All documents considered in con-
nection with any action shall be identified in such minutes.
5
"(2) The agency shall make promptly available to the public, in a place
easily accessible to the public, the transcript, electronic recording, or
minutes (as required by paragraph (1)) of the discussion of any item on
the agenda, or of any item of the testimony of any witness received at the
meeting, except for such item or items of such discussion or testimony as
the agency determines to contain information which may be withheld under
subsection (c). Copies of such transcript, or minutes, or a transcription
of such recording disclosing the identity of each speaker, shall be furnished
to any person at the actual cost of duplication or transcription. The
agency shall maintain a complete verbatim copy of the transcript, a
complete copy of the minutes, 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 meeting or portion
was held, whichever occurs later.
"(g) Each agency subject to the requirements of this section shall,
within 180 days after the date of enactment of this section, following con-
sultation with the Office of the Chairman of the Administrative Conference
of the United States and published notice in the Federal Register of at
least thirty days and opportunity for written comment by any persons
promulgate regulations to implement the requirements of subsections (b)
through (f) of this section. Any person may bring a proceeding in the
United States District Court for the District of Columbia to require an
agency to promulgate such regulations if such agency has not promulgated
such regulations within the time period specified herein. Subject to any
limitations of time 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.
"(h) (1) The district courts of the United States shall have jurisdiction to
enforce the requirements of subsections (b) through (f) of this section by
declaratory judgment, injunctive relief, or other relief as may be appro-
priate. Such actions may be brought by any person against an agency 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 court of the United States for the
district in which the agency meeting is held or in which the agency in
question has its headquarters, or in the District Court for the District of
Columbia. In such actions a defendant shall serve his answer within thirty
days after the service of the complaint. The burden is on the defendant to
sustain his action. In deciding such cases the court may examine in camera
any portion of the transcript, electronic recording, or minutes 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 parties, 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
available to the public such portion of the transcript, recording, or minutes
of a meeting as is not authorized to be withheld under subsection (c) of
this section.
6
"(2) Any Federal court otherwise authorized by law to review agency
action may, at the application of any person properly participating in
the proceeding pursuant to other applicable law, inquire into violations
by the agency of the requirements of this section and afford such relief
as it deems appropriate. Nothing in this section authorizes any Federal
court having jurisdiction solely on the basis of paragraph (1) to set
aside, enjoin, or invalidate any agency action (other than an action to
close a meeting or to withhold information under this section) taken or
discussed at an agency meeting out of which the violation of this section
arose.
"(i) The court may assess against any party reasonable attorney fees and
other litigation costs reasonably incurred by any other party who substan-
tially prevails in any action brought in accordance with the provisions of
subsection (g) or (h) of this section, except that costs may be assessed
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 costs against an agency, the costs may be assessed by the
court against the United States.
"(j) Each agency subject to the requirements of this section shall annu-
ally 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, including any costs assessed against the
agency in such litigation (whether or not paid by the agency).
"(k) Nothing herein expands or limits the present rights of any person
under section 552 of this title, except that the exemptions set forth in
subsection (c) of this section shall govern in the case of any request made
pursuant to section 552 to copy or inspect the transcripts, recordings, or
minutes described in subsection (f) of this section. The requirements of
chapter 33 of title 44, United States Code, shall not apply to the tran-
scripts, recordings, and minutes described in subsection (f) of this section.
"(I) This section does not constitute authority to withhold any informa-
tion from Congress, and does not authorize the closing of any agency
meeting or portion thereof required by any other provision of law to be
open.
"(m) Nothing in this section authorizes any agency to withholdfromany
individual any record, including transcripts, recordings, or minutes
required by this section, which is otherwise accessible to such individual
under section 552a of this title.".
(b) The chapter analysis of chapter 5 of title 5, United States Code, is
amended by inserting:
"552b. Open meetings."
immediately below:
"552a. Records about individuals.".
EX PARTE COMMUNICATIONS
SEC. 4. (a) Section 557 of title 5, United States Code, is amended by
adding at the end thereof the following new subsection:
"(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—
7
"(A) no interested person outside the agency shall make or
knowingly cause to be made to any member of the body comprising
the agency, administrative law judge, or other employee who is or
may reasonably be expected to be involved in the decisional process of
the proceeding, an ex parte communication relevant to the merits of the
proceeding;
"(B) no member of the body comprising the agency, administrative
law judge, or other employee who is or may reasonably be expected
to be involved in the decisional process of the proceeding, shall make
or knowingly cause to be made to any interested person outside the
agency an ex parte communication relevant to the merits of the
proceeding;
"(O) a member of the body comprising the agency, administrative
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 knowingly causes to be made, a communication pro-
hibited by this subsection shall place on the public record of the
proceeding:
"(i) all such written communica tions;
"(ii) memoranda stating the substance of all such oral com-
munications; and
"(iii) all written responses, and memoranda stating the sub-
stance of all oral responses, to the materials described in clauses
(i) and (ii) of this subparagraph;
(D) upon receipt of a communication knowingly made or know-
ingly caused to be made by a party in violation of this subsection,
the agency, administrative law judge, or other employee presiding at
the hearing may, to the extent consistent with the interests of justice
and the policy of the underlying statutes, require the party to show
cause why his claim or interest in the proceeding should not be
dismissed, denied, disregarded, or otherwise adversely affected 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 communication has
knowledge that it will be noticed, in which case the prohibitions shall
apply beginning at the time of his acquisition of such knowledge.
"(2) This subsection does not constitute authority to withhold informa-
tion from Congress."
(b) Section 551 of title 5, United States Code, is amended-
(1) by striking out "and" at the end of paragraph (12);
(2) by striking out the "act." at the end of paragraph (13) and
inserting in lieu thereof "act; and"; and
(3) by adding at the end thereof the following new paragraph:
'(14) 'ex parte communication' means an oral or written communi-
cation not on the public record with respect to which reasonable prior
notice to all parties is not given, but it shall not include requests
for status reports on any matter or proceeding covered by this sub-
chapter."
(c) Section 556 (d) of title 5, United States Code, is amended by inserting
between the third and fourth sentences thereof the following new sentence:
"The agency may, to the extent consistent with the interests of justice and
the policy of the underlying statutes administered by the agency, consider
8
a violation of section 557(d) of this title sufficient grounds for a decision
adverse to a party who has knowingly committed such violation or know-
ingly caused such violation to occur.".
CONFORMING AMENDMENTS
SEC. 5. (a) Section 410(b) (1) of title 39, United States Code, is amended
by inserting after "Section 552 (public information), the words "section
552a (records about individuals), section 552b (open meetings),
(b) Section 552(b) (3) of title 5, United States Code, is amended to read
as follows:
"(3) specifically exempted from disclosure by statute (other than
section 552b of this title), provided that such statute (A) requires
that the matters be withheld from the public in such a manner as to
leave no discretion on the issue, or (B) establishes particular criteria
for withholding or refers to particular types of matters to be withheld;"
(c) Subsection (d) of section 10 of the Federal Advisory Committee Act
is amended by striking out the first sentence and inserting in lieu thereof
the following: "Subsections (a) (1) and (a) (3) of this section shall not
apply to any portion of an advisory committee meeting where the President,
or the head of the agency to which the advisory committee reports, determines
that such portion of such meeting may be closed to the public in accordance
with subsection (c) of section 552b of title 5, United States Code.".
EFFECTIVE DATE
SEC. 6. (a) Except as provided in subsection (b) of this section, the
provisions of this Act shall take effect 180 days after the date of its en-
actment.
(b) Subsection (g) of section 552b of title 5, United States Code as,
added by section 3(a) of this Act, shall take effect upon enactment.
And the House agree to the same.
ABE RIBICOFF,
EDMUND S. MUSKIE,
LEE METCALF,
LAWTON CHILES,
C. H. PERCY,
J. JAVITS,
W. V. ROTH, Jr.,
Managers on the Part of the Senate.
JACK BROOKS,
JOHN E. Moss,
DANTE B. FASCELL,
JOHN CONYERS,
BELLA S. ABZUG,
WALTER FLOWERS,
GEORGE E. DANIELSON,
BARBARA JORDAN,
R. L. MAZZOLI,
EDWARD W. PATTERSON,
FRANK HORTON,
PAUL N. McCLOSKEY, Jr.,
CARLOS J. MOORHEAD,
THOMAS N. KINDNESS,
Managers on the Part of the House.
JOINT EXPLANATORY STATEMENT OF THE COMMITTEE
OF CONFERENCE
The managers on the part of the House and the Senate at the con-
ference on the disagreeing votes of the two Houses on the amendment
of the House to the bill (S. 5) to provide that meetings of Government
agencies shall be open to the public, and for other purposes, submit the
following joint statement to the House and the Senate in explanation
of the effect of the action agreed upon by the managers and recom-
mended in the accompanying conference report:
The House amendment to the text of the bill struck out all of the
Senate bill after the enacting clause and inserted a substitute text.
The Senate recedes from its disagreement to the amendment of the
House with an amendment which is a complete substitute for the
House amendment, and the House agrees to the same. The differences
among the Senate bill, the House amendment, and the substitute
agreed to in conference are noted below, except for clerical corrections,
conforming changes made necessary by agreements reached by the
conferees, and minor drafting and clarifying changes.
SHORT TITLE
The Senate bill, the House amendment, and the conference sub-
stitute provide that this legislation may be cited as the "Government
in the Sunshine Act".
DECLARATION OF POLICY
The Senate bill, the House amendment, and the conference sub-
stitute provide in section 2 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 while protecting the rights of individuals and the ability
of the Government to carry out its responsibilities.
OPEN MEETINGS
CODIFICATION
Senate bill
The Senate bill did not make its open meeting provisions a part of
title 5, United States Code.
House amendment
The House amendment enacted its open meeting provisions as a
new section 552b of title 5, United States Code.
Conference substitute
The conference substitute is the same as the House amendment.
(9)
10
DEFINITIONS
Senate bill
Section 3 of the Senate bill defined the term "person" to include an
individual partnership, corporation, association, or public or private
organization other than an agency.
Section 4(a) of the Senate bill made section 4 applicable to the
Federal Election Commission and to any agency, as defined in section
551 (1) of title 5, United States Code, where the collegial body com-
prising the agency consists of two or more individual members, at
least a majority of whom are appointed to such position by the
President with the advice and consent of the Senate.
Section 4(a) of the Senate bill also provided that for purposes of
section 4, a 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 official agency business.
The Senate bill did not contain a definition of the term "member".
House amendment
The House amendment, subsection (a) of the proposed new section
552b of title 5, United States Code, contained no definition of the
term "person", since the proposed section 552b would automatically
be subject to the definition of "person" continued in 5 U.S.C. 551(2)
(which is identical to the definition contained in the Senate bill).
The House amendment defined the term "agency" as the Federal
Election Commission and any agency, as defined in section 552(e)
of title 5, United States Code, headed by a collegial body composed
of two or more individuals, a majority of whom are appointed to
such position by the President with the advice and consent of the
Senate, including any subdivision thereof authorized to act on behalf
of the agency.
The House amendment defined the term "meeting" as a gathering to
jointly conduct or dispose of agency business by two or more, but at
least the number of individual agency members required to take
action on behalf of the agency, but not including gatherings held to
take action required or permitted by subsection (d) of section 552b.
The House amendment defined the term "member" as an individual
who belongs to a collegial body heading an agency.
Conference substitute
The conference substitute is subsection (a) of new section 552b.
It is the same as the House amendment, except as follows:
1. The separate reference to the Federal Election Commission
in the definition of "agency" is eliminated, since that body now
falls within the bill's generic definition of the term uuder the
provisions of Public Law 94-283.
2. Although the language of the House amendment referring
to a covered agency as "headed by a collegial body" is used in the
substitute instead of the reference in the Senate bill to "the
collegial body comprising the agency", the intent and under-
standing of the conferees regarding this provision is that meetings
of a collegial body governing an agency whose day-to-day
management may be under the authority of a single individual
(such as the United States Postal Service and the National
11
Railroad Passenger Corporation (Amtrak)) are included within
the definition of agency.
3. The substitute defines the term "meeting" as the delibera-
tions of at least the number of individual agency members
required to take action on behalf of the agency where such de-
liberations determine or result in the joint conduct or dispo-
sition of agency business, but not including deliberations to take
action to open or close a meeting, or to release or withhold in-
formation under subsection (d) or (e) of this section. This is the
Senate definition, as explained in the Senate report, except that
the word "concern" is replaced by the words "determine or result
in". This definition will include conference telephone calls if
they involve the requisite number of members and otherwise
come within the definition.
PROHIBITION ON CONDUCT OF BUSINESS OTHER THAN AS PROVIDED IN
THIS SECTION
Senate bill
The Senate bill contained no express prohibition on the conduct of
agency business other than as provided in the bill.
House amendment
Section (b) (1) of new section 552b, as included in the House amend-
ment, provided that members, as described in subsection (a) (2),
shall not jointly conduct or dispose of agency business without com-
plying with subsections (b) through (g).
Conference substitute
The conference substitute provides that members shall not jointly
conduct or dispose of agency business in a meeting other than in
accordance with new section 552b. This prohibition does not prevent
agency members from considering individually business that is
circulated to them sequentially in writing.
OPEN MEETING REQUIREMENT
Senate bill
Subsection 4(a) of the Senate bill provided that, except as provided
in subsection 4(b), all meetings of a collegial body comprising an
agency, or of a subdivision thereof authorized to take action on behalf
of the agency, shall be open to the public.
House amendment
The House amendment provided, in subsection (b) (2) of new section
552b, that except as provided in subsection (c), every portion of every
meeting of an agency (including a subdivision) shall be open to public
observation.
Conference substitute
The conference substitute is the same as the House amendment.
The phrase "open to public observation" is intended to guarantee
that ample space, sufficient visibility, and adequate acoustics will be
provided.
12
EXEMPTIONS FROM OPEN MEETING REQUIREMENT
Senate bill
Section 4(b) of the Senate bill provided that, except where the
agency finds that the public interest requires otherwise, (1) the open
meeting requirement of subsection 4 (a) shall not apply to any meeting,
or portion thereof, of an agency or a subdivision of an agency author-
ized to take action on behalf of the agency, and (2) the informational
and disclosure requirements of subsections 4 (c) and (d) shall not apply
to any information pertaining to such meeting otherwise required by
this section to be disclosed to the public, where the agency or sub-
division in question properly determines that such portion or portions
of the meeting, or such information, can be reasonably expected to-
(1) disclose matters (A) specifically authorized under criteria
by an Executive order to be kept secret in the interests of national
defense or foreign policy and (B) are in fact properly classified
pursuant to such Executive order;
(2) relate solely to the agency's own internal personnel rules
and practices;
(3) disclose information of a personal nature where disclosure
would constitute a clearly unwarranted invasion of personal
privacy;
(4) involve accusing any person of a crime, or formally censuring
any person;
(5) disclose information contained in investigatory records
compiled for law enforcement purposes, but only to the extent
that the disclosure would (A) interfere with enforcement pro-
ceedings, (B) deprive a person of a right to a fair trial or an
impartial adjudication, (C) constitute an unwarranted invasion
of personal privacy, (D) disclose the identity of a confidential
source, (E) in the case of a record compiled by a criminal law
enforcement authority in the course of a criminal investigation, or
by an agency conducting a lawful national security intelligence
investigation disclose confidential information furnished only by
the confidential source, (F) disclose investigative techniques and
procedures, or (G) endanger the life or physical safety of law
enforcement personnel;
(6) disclose trade secrets, or financial or commercial information
obtained from any person, where such trade secrets or other
information could not be obtained by the agency without a pledge
of confidentiality, or where such information must be withheld
from the public in order to prevent substantial injury to the
competitive position of the person to whom such information
relates;
(7) disclose information which must be withheld from the public
in order to avoid premature disclosure of an action or a proposed
action by-
(A) an agency which regulates currencies, securities,
commodities, or financial institutions where such disclosure
would (i) lead to significant financial speculation in cur-
rencies, securities, or commodities, or (ii) significantly
endanger the stability of any financial institution;
13
(B) any agency where such disclosure would significantly
frustrate implementation of the proposed agency action, or
private action contingent thereon; or
(C) any agency relating to the purchase by such agency
of real property.
This exemption would not apply in any instance where the agency
has already disclosed to the public the content or nature of its
proposed action, or where the agency is required by law to make
such disclosure on its own initiative prior to taking final agency
action on such proposal;
(8) disclose information contained in or related to examina-
tion, 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) specifically concern the agency's participation in a civil
action in Federal or State court, 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 title 5,
United States Code, or otherwise involving a determination on the
record after opportunity for a hearing; or
(10) disclose information required to be withheld from the pub-
lic by any other statute establishing particular criteria or referring
to particular types of information.
House amendment
Subsection (c) of 5 U.S.C. 552b, as included in the House amend-
ment, provided that except in a case where the agency finds that the
public interest requires otherwise, the open meeting requirement of
subsection (b) shall not apply to any portion of an agency meeting,
and the informational and disclosure 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 that are (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;
(3) disclose matters specifically exempted from disclosure by
statute (other than section 552 of title 5, United States Code),
provided that such statute (A) requires that the matters be
withheld from the public, or (B) establishes particular criteria
for withholding or refers to particular types of matters to be
withheld;
(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;
14
(7) disclose investigatory records compiled for law enforcement
purposes, or information which if written would be contained in
such records, but only to the extent that the production of such
records or information would (A) interfere with enforcement
proceedings, (B) deprive a person of a right to a fair trial or an
impartial adjudication, (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 conducting a lawful national security intelligence
investigation, confidential information furnished only by the
confidential source, (E) disclose investigative techniques and
procedures, or (F) endanger the life or physical safety of law en-
forcement personnel;
(8) disclose information contained in or related 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 case 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 exemption (9) (B) would not apply in any in-
stance after the content or nature of the proposed agency
action has been disclosed to the public by the agency, unless
the agency is required by law to make such disclosure prior
to taking final agency action on such proposal or after the
agency publishes or serves a substantive rule pursuant to
section 553(d) of title 5, United States Code; or
(10) specifically concern the agency's issuance of a subpena, or
the agency's participation in a civil action or proceeding, an
action in a foreign court or international tribunal, or an arbitra-
tion, 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 title 5, United States Code, or
otherwise involving a determination on the record after op-
portunity for a hearing.
Conference substitute
The conference substitute is the same as the House amendment,
except that the third exemption, incorporating by reference exemptions
contained in other statutes, applies only to statutes that either (a)
require that the information be withheld from the public in such a
manner as to leave no discretion on the issue, or (b) establish par-
ticular criteria for withholding or refer to particular types of in-
formation to be withheld. The conferees intend this language to over-
rule the decision of the Supreme Court in Administrator, FAA V.
Robertson, 422 U.S. 255 (1975), which dealt with section 1104 of the
Federal Aviation Act of 1958 (49 U.S.C. 1504). Another example
of a statute whose terms do not bring it within this exemption is
section 1106 of the Social Security Act (42 U.S.C. 1306).
15
The conferees' understanding and intention with respect to sub-
section (c) is as follows:
1. The conferees understand the word "likely" to mean that it is
more likely than not that the event or result in question will
occur.
2. The conferees intend the inclusion in the seventh exemption
(law enforcement material) of non-written information, such as
oral information imparted by a confidential informant, to cover
only information that if written would be included in investigatory
records compiled for law enforcement purposes.
3. The language of the House amendment regarding trade
secrets and confidential financial or commercial information is
identical to the analogous exemption in the Freedom of Informa-
tion Act, 5 U.S.C. 522(b)(4), and the conferees have agreed to
this language with recognition of judicial interpretations of that
exemption.
4. The limitation on the second part of the ninth exemption
(information whose disclosure would significantly frustrate a
proposed agency action) provides that it shall not apply in any
instance where the agency has already disclosed to the public
the content or nature of its proposed action, or where the agency
is required by law to make such disclosure on its own initiative
prior to taking final agency action on the proposal. Disclosure
of the information other than by the agency, such as by an un-
authorized "leak", would not render it ineligible for the protec-
tion of this exemption.
5. In an appropriate instance, an agency discussion of the possi-
ble purchase of real property would fall within the second part
of the ninth exemption.
6. The House version of the personnel exemption is agreed to
with recognition of the Supreme Court's interpretation of the
analogous Freedom of Information Act exemption in Department
of the Air Force V. Rose, - U.S. -, 44 U.S.L.W. 4503. (April 21,
1976).
PROCEDURE FOR CLOSING MEETINGS
Senate bill
Subsection 4(c) (1) of the Senate bill provided that action to close
a meeting or to withhold information under subsection 4(b) shall be
taken only when a majority of the entire membership of the agency
or subdivision concerned votes to take such action. A separate vote
is to be taken with respect to each meeting (or portion thereof) pro-
posed to be closed, or any information proposed to be withheld,
except that a single vote may be taken with respect to a series of
meetings, a portion or portions of which are proposed to be closed to
the public, or with respect to any information concerning such series
of meetings, if each meeting in the series involves the same particular
matters and is scheduled to be held no more than 30 days after the
initial meeting in the series.
The vote of each agency member is to be recorded and proxies are
not permitted.
Whenever any person whose interests might be directly affected
by a meeting requests that the agency close a portion or portions of
the meeting under the exemptions relating to personal privacy,
16
criminal accusation, or law enforcement information, the agency,
upon the request of any one of its members, is required to vote whether
to close such meeting.
Within one day of any vote taken pursuant to this paragraph, the
agency is required to make public a written copy of the vote.
Subsection 4(c) (2) of the Senate bill provided that if a meeting
(or portion thereof) is closed, the agency must, within one day of the
vote taken under paragraph (c) (1), make public a full written expla-
nation of its action closing the meeting, together with a list containing
the names and affiliations of all persons expected to attend the meeting.
Subsection 4(c) (3) of the Senate bill provided a special procedure
whereby any agency, a majority of whose meetings will properly be
closed to the public pursuant to the exemptions for trade secrets,
information that might lead to financial speculation, bank condition
reports, or adjudicatory proceedings or civil actions, may provide
by regulation for the closing of such meetings or portions, SO long as
a majority of the members of the agency vote at the beginning of the
meeting or portion to close the meeting and a copy of the vote is
made public.
The closing procedures of paragraphs (c) (1) and (2), and the an-
nouncement procedures of subsection (d), do not apply to any meeting
closed under these regulations, but the agency is required to make a
public announcement of the date, place, and subject matter of the
meeting at the earliest practicable opportunity (except to the extent
that to do SO would disclose information exempt under subsection
4(b)).
House amendment
Subsection (d) (1) of new section 552b, as set forth in the House
amendment, provided that action to close a meeting (or portion
thereof) may 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 is to be taken with respect to each meeting a portion or
portions of which are proposed to be closed, except that a single vote
may be taken with respect to a series of portions of meetings proposed
to be closed if each portion in such series involves the same particular
matters and is scheduled to be held no more than 30 days after the
initial portion of a meeting in the series.
The vote of each agency member is required to be recorded and
proxies are not permitted.
Subsection (d) (2) of section 552b provided that whenever any
person whose interests might be directly affected by a portion of a
meeting requests that the agency close such portion to the public
under the exemptions relating to personal privacy, criminal accusation,
or law enforcement information, the agency, upon the request of any
one of its members, is required to vote by recorded vote whether to
close such meeting.
Subsection (d) (3) of section 552b required the agency to make
public a written copy of any vote taken pursuant to paragraphs (d) (1)
or (2), reflecting the vote of each member on the question, within one
day after the vote. If the vote is to close the meeting (or a portion
thereof), the agency is also required to make public within one day a
full written explanation of its action closing the portion and a list of
the names and affiliations of all persons expected to attend the meeting.
17
Subsection (d) (4) of section 552b provided a special procedure
whereby any agency, a majority of whose meetings may properly be
closed pursuant to the exemptions for trade secrets, information that
might lead to financial speculation, bank condition reports, or adjudi-
catory proceedings or civil actions, may provide by regulation for the
closing of such meetings or portions in the event that a majority of the
members of the agency vote by recorded vote at the beginning of the
meeting or portion to close the exempt portions thereof and a copy of
the vote, reflecting the vote of each member on the question, is made
public.
The closing procedures of paragraphs (d) (1), (2) and (3), and the
announcement procedures of subsection (e), do not apply to any
portion of a meeting closed under these regulations, but the agency is
required to make a 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 (except to the extent that to do so would
disclose information exempt under subsection (d)).
Conference substitute
The conference substitute is the same as the Senate bill, except as
follows:
1. The reference to an agency subdivision in paragraph (1) is
eliminated, since the definition of "agency" in subparagraph
(a) (1) of section 552b includes any subdivision thereof authorized
to act on behalf of the agency. The reference to the definition of
"agency" in this instance is intended to make clear that when a
subdivision is authorized to act on behalf of the agency, a majority
of the entire membership of the subdivision is necessary to close
a meeting.
2. Any vote to close a meeting upon the request of an affected
person, or using the special procedure under paragraph (d) (4),
must be recorded. When such vote is published, the vote of each
individual member shall be set forth.
3. While the public announcement required when a meeting is
closed using the special procedure under paragraph (d) (4) need
only be made at the earliest practicable time, the conferees intend
that such announcements be made as soon as possible, which
should in few, if any, instances be later than the commencement
of the meeting or portion in question.
4. The fact that one portion of a meeting may be closed does
not justify the closing of any other portion.
ANNOUNCEMENT OF MEETINGS
Senate bill
Section 4(d) of the Senate bill required that the agency publicly
announce, at least one week before a meeting, the following:
1. the date of the meeting;
2. the place of the meeting;
3. the subject matter of the meeting;
4. whether the meeting is open or closed to the public; and
5. the name and telephone number of the official designated by
the agency to respond to requests for information about the
meeting.
18
This seven day period may be reduced if the majority of the mem-
bers of the agency or subdivision determine by vote that the agency
business SO requires, in which case public announcement of the date,
place, and subject matter of the meeting, and whether it is open or
closed, is to be made at the earliest practicable opportunity.
The subject matter or closed/open determination for a meeting may
be changed following the initial public announcement if (1) a majority
of the entire membership of the agency or subdivision determines by
vote that the agency business so requires and that no earlier announce-
ment of the change was possible, and (2) the change is announced at
the earliest practicable opportunity.
Notice of any public announcement required by this subsection is
to be submitted for publication in the Federal Register immediately
after its release.
House amendment
Subsection (e) of new section 552b, as added by the House amend-
ment, required that the agency publicly announce, at least one week
before a meeting, the following:
1. the date of the meeting;
2. the place of the meeting;
3. the subject matter of the meeting;
4. whether the meeting is to be open or closed to the public; and
5. the name and telephone number of the official designated by
the agency to respond to requests for information about the
meeting.
This seven day period may be reduced if the majority of the mem-
bers of the agency determines by recorded vote that the agency busi-
ness so requires, in which case public announcement of the date, place,
and subject matter of the meeting, and whether it was open or closed to
the public, is to be made at the earliest practicable time and 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
whether a meeting should be open or closed, may be changed following
the initial public announcement if (1) a majority of the entire member-
ship of the agency determines by recorded vote that the agency busi-
ness SO requires and that no earlier announcement of the change was
possible, and (2) the change and the vote of each member thereon is
announced at the earliest practicable time and in no case later than the
commencement of the meeting or portion in question.
Conference substitute
The conference substitute is the same as the House amendment,
except as follows:
1. While the public announcement required when a meeting is
announced on less than seven days' notice, or when the time, place
or subject matter of a meeting, or the determination whether to
open or close a meeting is changed following the initial public
announcement, need only be made at the earliest practicable time,
the conferees intend that such announcements be made as soon as
possible, which should in few, if any, instances be later than the
commencement of the meeting or portion in question.
2. A change in the time or place of a meeting made subsequent
to the initial announcement need not be voted upon by the agency
members, but must be announced at the earliest practicable time.
19
3. The bill requires that reasonable means be used to assure
that the public is fully informed of public announcements pursu-
ant to this section. Such means include posting notices on the
agency's public notice boards, publishing them in publications
whose readers may have an interest in the agency's, operations,
and sending them to the persons on the agency's general mailing
list or a mailing list maintained for those who desire to receive
such material.
Notice of a public announcement pursuant to this subsection
must also be submitted immediately for publication in the Federal
Register.
TRANSCRIPTS, RECORDINGS, AND MINUTES OF MEETINGS
Senate bill
Section 4 (e) of the Senate bill required that a verbatim transcript
or electronic recording be made of each meeting or portion closed to the
public, except for a meeting or portion closed under the exemption for
adjudicatory proceedings and civil actions. The transcript or recording
of each item on the agenda is to be made available to the public
promptly, in a place easily accessible to the public, where no significant
portion of such item contains any information falling within one of the
the exemptions in section (b).
Copies of the transcript (or a transcription of the recording dis-
closing the identity of each speaker) are to be furnished to any person
at the actual cost of duplication or transcription.
The complete transcript or recording is to be maintained by the
agency for at least two years after the meeting or one year after the
conclusion of the agency proceeding which was the subject of the
meeting, whichever occurred later.
House amendment
Subsection (f) (1) of new section 552b, as contained in the House
amendment, required that for every meeting closed under the section,
the General Counsel or chief legal officer of the agency certify that, in
his opinion, the meeting may properly be closed and state the relevant
exemptive provision. A copy of such certification, together with a
statement from the presiding officer of the meeting setting forth the
date, time, and place of the meeting, the persons present, the generic
subject matter of the discussion at the meeting, and the actions taken,
is to be incorporated into minutes retained by the agency.
Subsection (f) (2) of section 552b required that written minutes be
kept of any meeting or portion which is open and promptly be made
available to the public in a location easily accessible to the public.
The minutes are to be maintained for a period of at least two years
after the meeting, and copies are to be furnished to any person at no
greater than the actual cost of duplication (or, if in the public interest,
at no cost).
Conference substitute
Subsection (f) (1) of the conference substitute requires that before
a meeting may be closed, the General Counsel or chief legal officer
of the agency must certify that, in his or her opinion, the meeting may
properly be closed and state each relevant exemptive provision. A copy
20
of such certification, together with a statement from the presiding
officer of the meeting setting forth the date, time, and place of the
meeting, and the persons present, shall be retained by the agency as
part of the transcript, recording, or minutes of the meeting.
The agency shall make a verbatim transcript or electronic recording
of each meeting or portion closed to the public, except that for a meet-
ing closed under exemptions (8) (bank reports), (9) (A) (information
likely to lead to financial speculation), and (10) (adjudicatory proceed-
ings or civil actions), the agency may elect to make either a transcript,
a recording, or minutes. If minutes are kept, they must fully and
clearly describe all matters discussed, provide a full and accurate
summary of any actions taken and the reasons expressed therefor,
and include a description of each of the views expressed on any item.
The minutes must also reflect the vote of each member on any roll
call vote taken during the proceedings and must identify all documents
considered at the meeting.
Subsection (f) (2) of the conference substitute requires that the
transcript, recording, or minutes made pursuant to paragraph (f) (1)
as to each item on the agenda must be made promptly available to
the public, except for agenda items or items of the discussion or testi-
mony that the agency determines to contain information exempt
under subsection (c).
Copies of the nonexempt portions of the transcript, or minutes, or a
transcription of the recording disclosing the identity of each speaker,
must be furnished to any person at the actual cost of duplication or
transcription.
The complete transcript, minutes, or recording of a closed meeting
is to be maintained by the agency for at least two years after the meet-
ing or one year after the conclusion of the agency proceeding which
was the subject of the meeting, whichever occurs later.
AGENCY REGULATIONS
Senate bill
Section 4(f) of the Senate bill required each agency subject to the
requirements of section 4 to promulgate implementing regulations
within 180 days after the enactment of the Act, following consultation
with the Office of the Chairman of the Administrative Conference
of the United States, published notice in the Federal Register of at
least 30 days and opportunity for any person to make written com-
ment thereon.
The Senate provision permitted any person to bring a proceeding
in the United States District Court for the District of Columbia
to require the promulgation of such regulations if not promulgated
within the 180-day period, and also permitted any person to bring
a proceeding in the United States Court of Appeals for the District
of Columbia Circuit to set aside any such regulations not in accord
with the requirements of subsections (a) through (e) of section 4
and to require the promulgation of regulations in accord with those
provisions.
House amendment
The House amendment, subsection (g) of new section 552b, was
the same as the Senate bill, except that the right to bring a proceeding
in the Court of Appeals to challenge agency regulations promulgated
21
under the Act is subject to "any limitations of time therefor provided
by law."
Conference substitute
The conference substitute is the same as the House amendment,
except that the right to bring a proceeding in the Court of Appeals
to challenge agency regulations promulgated under the Act is subject
to "any limitations of time provided by law."
JUDICIAL REVIEW
Senate bill
Section 4(g) of the Senate bill vested in the United States District
Courts jurisdiction to enforce subsections (a) through (e) of section 4
by declaratory judgment, injunctive relief, or other appropriate relief.
An action may be brought by any person prior to, or within 60 days
after the meeting in question, except that if proper public announce-
ment of the meeting is not made, the action may be instituted at any
time within 60 days after such announcement is made.
The Senate provision required a potential plaintiff to notify the
agency before instituting suit and to allow it a reasonable period of
time (not to exceed 10 days or, if notification is made prior to the
meeting, not to exceed two days) to correct the violation.
An action may be brought where the plaintiff resides or has his
principal place of business, or where the agency has its headquarters.
The defendant is required to serve his answer within 20 days after the
service of the complaint, and the burden is on the defendant to sustain
his action.
In deciding such an action the court may examine in camera any
portion of the transcript or recording of a closed meeting and may take
any additional evidence it deems necessary. The court, having due
regard for orderly administration, the public interest, and the in-
terests of the party, may grant such equitable relief as it deems ap-
propriate, including enjoining future violations or ordering the agency
to make public the transcript or recording of any portion of a meeting
improperly closed to the public.
Subsection 4(g) provided that, except as provided in subsection
4(h), nothing in section 4 confers jurisdiction upon any district court
to set aside or invalidate any agency action taken or discussed at a
meeting out of which a violation of this section arose.
Subsection 4 (h) of the Senate bill provided that any Federal court
otherwise authorized by law to review agency action may, at the re-
quest of any person properly participating in such a review proceeding,
inquire into violations of section 4 by the agency and afford any such
relief as it deems appropriate.
House amendment
In the House amendment, subsection (h) of new section 552b
vested in the United States District Courts jurisdiction to enforce
subsections (b) through (f) of section 552b. An action may be brought
by any person prior to, or within 60 days after the meeting in question,
except that if proper public announcement of the meeting is not made,
the action may be instituted at any time within 60 days after such
announcement is made.
22
The House amendment permitted an action to be brought where
the meeting was held, where the agency has its headquarters, or in the
District of Columbia. The defendant is required to serve his answer
within 20 days after the service of the complaint, but the court may
extend that time limit for up to 20 additional days upon a showing of
good cause for an extension. The burden is on the defendant to sustain
his action.
In deciding such an action the court may examine in camera any
portion of the minutes of a closed meeting and may take any addi-
tional evidence it deemed necessary. The court, having due regard for
orderly administration, the public interest, and the interests of the
party, may grant such equitable relief as it deems appropriate, in-
cluding enjoining future violations or ordering the agency to make
public such portion of the minutes as was not exempt under subsection
(c) of section 552b.
Subsection (h) further provided that nothing in section 552b confers
jurisdiction on a district court acting solely under subsection (h) to
set aside, enjoin, or invalidate any agency action taken or discussed
at a meeting out of which a violation of section 552b arose.
Conference substitute
The conference substitute vests in the United States District
Courts jurisdiction to enforce subsections (b) through (f) of section
552b by declaratory judgment, injunctive relief, or other relief as may
be appropriate. An action may be brought by any person prior to, or
within 60 days after the meeting in question, except that if proper
public announcement of the meeting is not made, the action may be
instituted at any time within 60 days after such announcement is made.
The conference substitute does not contain the requirement of the
Senate bill that a potential plaintiff formally notify the agency before
commencing an action under this subsection because the conferees
expect and encourage potential plaintiffs or their attorneys to com-
municate informally with the agency before bringing suit.
An action under subsection (h) (1) may be brought where the agency
meeting was or is to be held, where the agency has its headquarters, or
in the District of Columbia. The defendant must serve his answer
within 30 days after the service of the complaint, and the court is not
given discretion by the substitute to extend that time limit. The bur-
den is upon the defendant to substain his action.
In deciding such an action the court may examine in camera any
portion of the transcript, recording, or minutes of a closed meeting and
may take any additional evidence it deems necessary. The court,
having due regard for orderly administration, the public interest, and
the interests of the party, may grant such equitable relief as it deems
appropriate, including enjoining future violations or ordering the
agency to make public such portion of the transcript, recording, or
minutes as is not exempt under subsection (c) of section 552b.
Subsection (h) (2) of section 552b, as contained in the conference
substitute, provides that any Federal court otherwise authorized to
review action (under provisions such as chapter 7 of title 5, U.S.
Code, or chapter 158 of title 28, U.S. Code) may, on the application
of any person properly participating in the review proceeding, inquire
into violations of section 552b by the agency and afford such relief
as it deems appropriate. Nothing in section 552b authorizes any
23
Federal court having jurisdiction solely on the basis of subsection
(h) (1) to set aside, enjoin, or invalidate any agency action (other
than an action, such as to close a meeting, or withhold a portion of
a transcript, recording, minutes, or other information, taken pursuant
to section 552b) taken or discussed at a meeting out of which a viola-
tion of section 552b arose.
The conferees do not intend the authority granted to the Federal
courts by the first sentence of subsection (h) (2) to be employed to set
aside agency action taken other than under section 552b solely because
of a violation of section 552b in any case where the violation is un-
intentional and not prejudicial to the rights of any person participat-
ing in the review proceeding. Agency action should not be set aside for
a violation of section 552b unless that violation is of a serious nature.
ATTORNEY FEES AND LITIGATION COSTS
Senate bill
Section 4(i) of the Senate bill authorized the court hearing an action
under subsection (f), (g), or (h) of that section to assess against any
party reasonable attorney fees and other litigation costs reasonably
incurred by any other party who substantially prevails in the action.
Costs may be assessed against an individual member of an agency
only where the court finds that he has intentionally and repeatedly
violated section 4, and against a plaintiff where the court finds that he
initiated the suit for frivolous or dilatory purposes. In the case of
apportionment of fees or costs against any agency, the fees or costs
may be assessed against the United States.
House amendment
Subsection (i) of new section 552b, as contained in the House
amendment, authorized the court hearing an action under subsection
(g) or (h) of section 552b to assess against any party reasonable attor-
ney fees and other litigation costs reasonably incurred by any other
party who substantially prevails in the action. Costs may be assessed
against a plaintiff only where the court finds that he initiated the suit
primarily for frivolous or dilatory purposes. In the case of assessment
of fees or costs against an agency, they may be assessed against the
United States.
Conference substitute
The conference substitute is the same as the House amendment.
ANNUAL REPORT TO CONGRESS
Senate bill
Section 4(j) of the Senate bill required the agencies subject to the
requirements of section 4 to report annually to Congress regarding
their compliance, including the total number of meetings open to the
public, the total number closed to the public, the reasons for the clos-
ings, and a description of any litigation brought against the agency
under section 4.
House amendment
Subsection (j) of new section 552b of the House amendment re-
quired each agency subject to the requirements of the section to report
annually to Congress regarding its compliance, including the total
number of meetings open to the public, the total number closed to the
24
public, the reasons for the closings, and a description of any litigation
brought against the agency under section 552b (including any fees or
costs assessed against the agency in such litigation, whether or not
paid by the agency).
Conference substitute
The conference substitute is the same as the House amendment.
RELATIONSHIP TO THE FREEDOM OF INFORMATION ACT, 5 U.S.C. 552
Senate bill
Section 6(a) of the Senate bill provided that except as specifically
provided in section 4, nothing in section 4 confers any additional rights
on any person or limits the existing rights of any person to inspect or
copy, under 5 U.S.C. 552, any documents or written material within
the possession of any agency. In the case of any request made pursuant
to 5 U.S.C. 552 to copy or inspect the transcripts or recordings
described in section 4(e) of the Senate bill, the provisions of this Act
govern whether the transcripts or recordings are to be made available
in response to the request.
Section 6(a) also makes the requirements of chapter 33 of title 44,
United States Code, inapplicable to the transcripts and recordings
described in section 4(e) of the Senate bill.
The Senate bill contained no provision amending the third exemp-
tion set forth in 5 U.S.C. 552(b).
House amendment
Subsection (k) of new section 552b, as included in the House amend-
ment, provided that other than as specifically provided in section
552b, nothing in section 552b expands or limits the existing rights of
any person under 5 U.S.C. 552, except that the provisions of this
act govern in the case of any request made pursuant to 5 U.S.C. 552
to copy or inspect the minutes described in subsection (f) of new
section 552b.
Subsection (k) also makes the requirements of chapter 33 of title
44, United States Code, inapplicable to the minutes described in
subsection (f) of section 552b.
Section 5(b) of the House amendment amended the third exemp-
tion set forth in 5 U.S.C. 552(b) to include matters specifically ex-
empted from disclosure by statute (other than the new section 552b),
if the statute either requires that the matters be withheld from the
public or establishes particular criteria for withholding or refers to
particular types of matters to be withheld.
Conference substitute
The conference substitute provides that nothing in section 552b
expands or limits the existing rights of any person under 5 U.S.C.
552, except that the exemptions in subsection (c) of séction 552b
shall govern in the case of any request made pursuant to 5 U.S.C. 552
to copy or inspect the transcripts, recordings or minutes described in
subsection (f) of section 552b.
The conference substitute further provides that the requirements of
chapter 33 of title 44, United States Code, shall not apply to the
transcripts, recordings, and minutes described in subsection (f) of
section 552b.
25
Section 5(b) of the conference substitute amends the third exemp-
tion in 5 U.S.C. 552(b) to include information specifically exempted
from disclosure by statute (other than new section 552b), if the
statute either (a) requires that the information be withheld from the
public in such a manner as to leave no discretion on the issue, or (b)
establishes particular criteria for withholding or refers to particular
types of information to be withheld. The conferees intend this language
to overrule the decision of the Supreme Court in Administrator, FAA
V. Robertson, 422 U.S. 255 (1975), which dealt with section 1104 of
the Federal Aviation Act of 1958 (49 U.S.C. 1504). Another example
of a statute whose terms do not bring it within this exemption is
section 1106 of the Social Security Act (42 U.S.C. 1306).
AUTHORITY TO WITHHOLD INFORMATION FROM CONGRESS
Section 6(a) of the Senate bill, subsection (1) of new section 552b
of the House amendment, and subsection (1) of section 552b in the
conference substitute all provide that the open meeting provisions
of the legislation (section 552b of the conference substitute) do not
constitute authority to withhold information from Congress.
CLOSING OF MEETINGS OTHERWISE REQUIRED TO BE OPEN
Senate bill
No comparable provision.
House amendment
Subsection (1) of new section 552b, as contained in the House
amendment, provides that section 552b does not authorize the closing
of any agency meeting otherwise required by law to be open.
Conference substitute
The conference substitute is the same as the House amendment.
RELATIONSHIP TO THE PRIVACY ACT OF 1974, 5 U.S.C. 552A
The Senate bill, the House amendment, and the conference sub-
stitute all provide that nothing in the open meeting provisions of this
legislation (section 552b of the conference substitute) authorizes any
agency to withhold from any individual any record, including the
transcripts, recordings, and minutes required by these provisions,
which is otherwise accessible to that individual under 5 U.S.C. 552a.
RELATIONSHIP TO FEDERAL ADVISORY COMMITTEE ACT, 5 U.S.C. APP. I
Senate bill
No comparable provisions.
House amendment
Subsection (n) of new section 552b of the House amendment pro-
vided that in the event that 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 section 552b, the meeting is governed by the provisions
of section 552b.
26
Subsection 5(c) of the House amendment amended the Federal
Advisory Committee Act to make advisory committee meetings sub-
ject to the exemptions contained in the new 5 U.S.C. 552b (enacted by
this act), rather than to the exemptions contained in 5 U.S.C. 552.
This provision in the House bill is addressed to a problem that has
arisen in administration of the Federal Advisory Committee Act,
enacted in 1972. In establishing a requirement in that Act that meeting,
of Executive Branch advisory committee should be open to the public,
Congress adopted the exemption provisions set forth in the Freedom of
Information Act (FOIA) to describe the few types of meetings that
might properly be closed. Unfortunately, this approach has not been
entirely satisfactory, largely because those exemptions were designed
to deal with documents rather than meetings, and some agencies have
closed advisory committee meetings for reasons not contemplated by
Congress. The chief concern in this regard has been application of
exemption 5, a provision intended to protect the confidentiality of
purely internal governmental deliberations, as a basis for closing dis-
cussions with and among outside advisers. One court has given approval
to the use of exemption 5 to close advisory committee meetings,
Aviation Consumer Action Project V. Washburn, 535 F.2d 101 (D.C.
Cir. 1976).
The House provision which was unanimously approved, is intended
to cure this and similar problems by replacing the nine FOIA exemp-
tions presently incorporated in the Federal Advisory Committee Act
with the new exemptions of the Sunshine Act that have been expressly
designed to govern meetings, as opposed to documents. This provision
thus overrules the Washburn case and is intended to end agency
reliance upon the "full and frank" discussion rationale for closing
advisory committee meetings. Under this provision, portions of federal,
advisory committee meetings may be, but are not required to be
closed when they fall within one of the disclosure exemptions that are
created for meetings of collegial bodies under section 552b of title 5,
United States Code.
Conference substitute
Subsection 5(c) of the conference substitute amends the Federal
Advisory Committee Act (5 U.S.C. App. I) to make advisory com-
mittee meetings subject to the exemptions contained in 5 U.S.C. 552b
(enacted by this act).
The Conference substitute is the same as the House provision. The
conferees, however, are concerned about the possible effect of this
amendment upon the peer review and clinical trial preliminary data
review systems of the National Institutes of Health. The conferees thus
wish to state as clearly as possible that personal data, such as individual
medical information, is especially sensitive and should be given appro-
priate protection to prevent clearly unwarranted invasions of individ-
ual privacy. While the conferees are sympathetic to the concerns
expressed by NIH regarding its committees' funding recommendations
and analysis of preliminary data, the conferees are equally sympathetic
to concerns expressed by citizens' groups that important fiscal and
health-related information not be unnecessarily withheld from the
public.
With these competing interests in mind, the conferees have secured
assurances that the appropriate House and Senate committees will
27
review the unique problems of NIH under the new standards. Indeed,
it is noted that the Subcommittee on Reports, Accounting and
Management of the Senate Government Operations Committee has
already held three days of hearings on this matter and plans to
continue with further inquiry at an early date.
Ex PARTE COMMUNICATIONS
PROHIBITION
Senate bill
Section 5(a) of the Senate bill added a new subsection (d) to 5
U.S.C. 557. Subsection (d) provided that in any agency proceeding
subject to 5 U.S.C. 557(a), except as required for the disposition of
ex parte matters as authorized by law-
(1) no interested person outside the agency shall make or
knowingly cause to be made to any member of the body com-
prising the agency, administrative law judge, or other employee
who is or may reasonably be expected to be involved in the
decisional process of the proceeding, an ex parte communication
relevant to the merits of the proceeding;
(2) no 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 the proceeding
shall make or knowingly cause to be made to an interested person
outside the agency an ex parte communication relevant to the
merits of the proceeding;
(3) 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 proceed-
ing who receives, or who makes, a communication in violation of
subsection (d), shall place on the public record of the proceeding:
(A) written communications transmitted in violation of
subsection (d);
(B) memorandums stating the substance of all oral
communications occurring in violation of subsection (d) and
(C) responses to the materials described in the two
preceding paragraphs;
(4) upon receipt of a communication knowingly made by a
party, or which was knowingly caused to be made by a party in
violation of subsection (d), the agency, administrative law judge,
or other employee presiding at the hearing may, to the extent
consistent with the interests 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 dis-
missed, denied, disregarded, or otherwise adversely affected by
virtue of such violation;
(5) the prohibitions of subsection (d) shall apply at such time
as the agency might designate, but in no case later than the time
at which a proceeding is noticed for hearing unless the person
responsible for the communication has knowledge that it will be
noticed, in which case the prohibitions shall apply at the time of
his acquisition of such knowledge.
Section 6(a) of the Senate bill provided that the act does not
authorize any information to be withheld from Congress.
28
House amendment
Section (a) of the House amendment added a new subsection (d)
to 5 U.S.C. 557. Subsection (d) provided that in any agency proceeding
subject to 5 U.S.C. 557 (a), except as required for the disposition of
ex parte matters as authorized by law—
(1) no interested person outside the agency shall make or cause
to be made to any member of the body comprising the agency,
administrative law judge, or other employee who is or may
reasonably be expected to be involved in the decisional process of
the proceeding, an ex parte communication relative to the merits
of the proceeding;
(2) no 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 the proceed-
ing, may make or cause to be made to any interested person
outside the agency an ex parte communication relative to the
merits of the proceeding;
(3) 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 proceed-
ing who receives, or who makes or caused to be made, a com-
munication prohibited by subsection (d) shall place on the public
record of the proceedings:
(A) all such written communications;
(B) memoranda stating the substance of all such oral
communications; and
(C) all written responses, and memoranda stating the sub-
stance of all oral responses, to the materials described in the
two preceding paragraphs;
(4) in the event of a communication prohibited by this sub-
section and made or caused to be made by a party or interested
person, the agency, administrative law judge, or other employee
presiding at the hearing may, to the extent consistent with the
interests 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 otherwise adversely affected on account of such violation; and
(5) the prohibitions of subsection (d) shall apply beginning at
such time as the agency may designate, but in no case later than
the time at which a proceeding is noticed for hearing unless the
person responsible for the communication has knowledge that
it would be noticed, in which case the prohibitions shall apply
beginning at the time of his acquisition of such knowledge.
Subsection (d) (2), as added by the House amendment, provided
that subsection (d) does not constitute authority to withhold in-
formation from Congress.
Conference substitute
The conference substitute is the same as the Senate bill, except as
follows:
1. The requirement of placing material on the public record
applies to an agency decisionmaking official who knowingly
causes an ex parte communication to be made, as well as to one
who receives or makes such a communication.
2. The conference substitute clarifies the time at which the
prohibition on ex parte communications begins to apply.
29
3. The provision that subsection (d) is not authority to with-
hold information from Congress is included in the subsection as
paragraph (2).
4. Although the conference substitute does not contain express
provision for sanctions against an interested person (who is not
a party) who makes a prohibited communication, the conferees
intend that such a person be subject to all sanctions provided
in the bill if he later becomes a party to the proceeding.
The word "relevant" is not used in the strict evidentiary sense, but
is intended to apply to communications bearing on the merits or
affecting the merits.
DEFINITION OF "EX PARTE COMMUNICATION"
Senate bill
Section 5(b) of the Senate bill defined an ex parte communication
as an oral or written communication not on the public record with
respect to which reasonable prior notice to all parties is not given.
House amendment
Section 4(b) of the House amendment defined an ex parte com-
munication as an oral or written communication not on the public
record with respect to which reasonable prior notice to all parties
is not given. The definition expressly excluded requests for information
on or status reports relative to any matter or proceeding covered by
subchapter II of chapter 5 of title 5, United States Code.
Conference substitute
The conference substitute defines an ex parte communication as an
oral or written communication not on the public record with respect
to which reasonable prior notice to all parties is not given. The defini-
tion contained in the conference substitute expressly excludes requests
for status reports on any matter or proceeding covered by subchapter
II of chapter 5 of title 5, United States Code.
The conferees wish to note the fact that this provision and the
ex parte provisions of new section 557(d) (as added by this act) in
no way prohibit-
1. any communication with an agency decisionmaking official
if not involving a formal adjudicatory proceeding (and a few
formal rulemaking proceedings) or
2. any communication with a decisionmaking official is not
relevant to the merits of a covered proceeding; or
3. any communication with a decisionmaking official in any
proceeding at any time if it involves only a request for the status
of the proceeding and is not intended to affect the merits; or
4. any communication at any time with an agency official not
involved in the decisional process.
SANCTIONS
Senate bill
Section 5(c) of the Senate bill amended 5 U.S.C. 556(d) to permit an
agency, to the extent consistent with the interests of justice and the
policy of the underlying statutes administered by the agency, to con-
sider a violation of 5 U.S.C. 557(d), as added by this act, sufficient
grounds for a decision on the merits adverse to a party who has
knowingly committed or caused the violation.
30
House amendment
Section 4(c) of the House amendment amended 5 U.S.C. 556(d) to
permit an agency, to the extent consistent with the interests of justice
and the policy of the underlying statutes administered by the agency,
to consider a violation of 5 U.S.C. 557(d), as added by this act, suffi-
cient grounds for a decision on the merits adverse to a person or party
who has committed or caused the violation.
Conference substitute
The conference substitute is the same as the Senate bill.
CONFORMING AMENDMENT AND EFFECTIVE DATES
U.S. POSTAL SERVICE
Senate bill
No comparable provision.
House amendment
Section 5(a) of the House amendment amended 39 U.S.C. 410(b)(1)
to make clear the fact that new section 552b and the Privacy Act of
1974 (5 U.S.C. 552a) apply to the United States Postal Service.
Conference substitute
The conference substitute is the same as the House amendment.
EFFECTIVE DATES
The Senate bill, the House amendment, and the conference sub-
stitute all provide that this act shall take effect 180 days after the
date of its enactment, except that the provision requiring the promul-
gation of agency regulations to implement the open meeting provisions
(new section 552b(g)), as contained in the conference substitute, shall
take effect upon enactment.
ABE RIBICOFF.
EDMUND S. MUSKIE,
LEE METCALF,
LAWTON CHILES,
C. H. PERCY,
J. JAVITS,
W. V. ROTH, Jr.,
Managers on the Part of the Senate.
JACK BROOKS,
JOHN E. Moss,
DANTE B. FASCELL,
JOHN CONYERS,
BELLA S. ABZUG,
WALTER FLOWERS,
GEORGE E. DANIELSON,
BARBARA JORDAN,
R. L. MAZZOLI,
EDWARD W. PATTERSON,
FRANK HORTON,
PAUL N. McCLOSKEY, Jr.,
CARLOS J. MOORHEAD,
THOMAS N. KINDNESS,
Managers on the Part of the House.
S.5
Ainety-fourth Congress of the United States of America
AT THE SECOND SESSION
Begun and held at the City of Washington on Monday, the nineteenth day of January,
one thousand nine hundred and seventy-six
An Act
To provide that meetings of Government agencies shall be open to the public,
and for other purpose-:
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That this Act may
be cited as the "Government in the Sunshine Act".
DECLARATION OF POLICY
SEC. 2. It is hereby declared to be the policy of the United States that
the public is entitled to the fullest practicable information regarding
the decisionmaking processes of the Federal Government. It is the
purpose of this Act to provide the public with such information while
protecting the rights of individuals and the ability of the Government
to carry out its responsibilities.
OPEN MEETINGS
SEC. 3. (a) Title 5, United States Code, is amended by adding after
section 552a the following new section
"§ 552b. Open meetings
(a) For purposes of this section-
"(1) the term 'agency' means 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 President with the advice and consent of
the Senate, and 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 determine or
result in the joint conduct or disposition of official agency busi-
ness, but does not include deliberations required or permitted by
subsection (d) or (e) ; and
"(3) the term 'member' means an individual who belongs to
a collegial body heading an agency.
(b) Members shall not jointly conduct or dispose of agency business
other than in accordance with this section. Except as provided in sub-
section (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 inter-
est requires otherwise, the second sentence of 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 pertain-
ing 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 that are (A) specifically authorized under
criteria established by an Executive order to be kept secret in the
S. 5-2
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;
"(3) disclose matters specifically exempted from disclosure by
statute (other than section 552 of this title), provided that such
statute (A) requires that the matters be withheld from the public
in such a manner as to leave no discretion on the issue, or (B)
establishes particular criteria for withholding or refers to partic-
ular types of matters to be withheld;
"(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, or information which if written would be con-
tained in such records, but only to the extent that the production
of such records or information would (A) interfere with enforce-
ment proceedings, (B) deprive a person of a right to a fair trial
or an impartial adjudication, (C) constitute an unwarranted
invasion of personal privacy, (D) disclose the identity of a con-
fidential source and, in the case of a record compiled by a criminal
law enforcement authority in the course of a criminal investiga-
tion, or by an agency conducting a lawful national security
intelligence investigation, confidential information furnished
only by the confidential source, (E) disclose investigative tech-
niques and procedures, or (F) endanger the life or physical safety
of law enforcement personnel;
"(8) disclose information contained in or related to examina-
tion, operating, or condition reports prepared by, on behalf of, or
for the use of an agency responsible for the regulation or supervi-
sion of financial institutions;
"(9) disclose information the premature disclosure of which
would—
"(A) in the case of an agency which regulates currencies,
securities, commodities, or financial institutions, be likely to
(i) lead to significant financial speculation in currencies,
securities, or commodities, or (ii) significantly 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 subparagraph (B) shall not apply in any instance
where the agency has already disclosed to the public the content or
nature of its proposed action, or where the agency is required by
law to make such disclosure on its own initiative 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 civil action or proceeding, an
action in a foreign court or international tribunal, or an arbitra-
tion, 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 record after opportunity for a hearing.
S. 5-3
"(d) (1) Action under subsection (c) shall be taken only when a
majority of the entire membership of the agency (as defined in sub-
section (a) (1)) votes to take such action. A separate vote of the agency
members shall be taken with respect to each agency meeting a portion
or portions of which are proposed to be closed to the public pursuant
to subsection (c), or with respect to any information which is proposed
to be withheld under subsection (c). A single vote may be taken with
respect to a series of meetings, a portion or portions of which are pro-
posed to be closed to the public, or with respect to any information
concerning such series of meetings, SO long as each meeting in such
series involves the same particular matters and is scheduled to be held
no more than thirty days after the initial 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 mem-
bers, 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. If 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 of all persons expected to attend the
meeting and their affiliation.
"(4) Any agency, a majority 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 regula-
tion for the closing of such meetings or portions thereof 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 portion 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 meet-
ing to which such regulations apply: Provided, That the agency shall,
except to the extent that such information is exempt from disclosure
under the provisions of subsection (c), provide the public with public
announcement of the time, place, and subject matter of the meeting
and of each portion thereof at the earliest practicable time.
"(e) (1) In the case of each meeting, the agency shall make public
announcement, at least one week before the meeting, of the time, 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 official designated
by the agency to respond to requests for information about the meet-
ing. 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 time,
place, and subject matter of such meeting, and whether open or closed
to the public, at the earliest practicable time.
"(2) The time or place of a meeting may be changed following the
public announcement required by paragraph (1) only if the agency
publicly announces such change at the earliest practicable time. The
S. 5-4
subject matter of a meeting, or the determination of the agency to
open or close a meeting, or portion of a meeting, to the public, may be
changed following the public announcement required by this subsec-
tion only if (A) a majority of the entire membership of the agency
determines by a recorded vote that agency business SO requires and
that no earlier announcement of the change was possible, and (B)
the agency publicly announces such change and the vote of each
member upon such change at the earliest practicable time.
"(3) Immediately following each public announcement required by
this subsection, notice of the time, place, and subject matter of a
meeting, whether the meeting is open or closed, any change in one of
the preceding, and the name and phone number of the official desig-
nated by the agency to respond to requests for information about the
meeting, shall also be submitted for publication in the Federal
Register.
(f) (1) For every meeting closed pursuant to paragraphs (1)
through (10) of subsection (c), the General Counsel or chief legal
officer of the agency shall publicly certify that, in his or her opinion,
the meeting may be closed to the public and shall state each relevant
exemptive provision. A copy of such certification, together with a state-
ment from the presiding officer of the meeting setting forth the time
and place of the meeting, and the persons present, shall be retained by
the agency. The agency shall maintain a complete transcript or elec-
tronic recording adequate to record fully the proceedings of each
meeting, or portion of a meeting, closed to the public, except that in
the case of a meeting, or portion of a meeting, closed to the public pur-
suant to paragraph (8), (9) (A), or (10) of subsection (c), the agency
shall maintain either such a transcript or recording, or a set of minutes.
Such minutes shall fully and clearly describe all matters discussed and
shall provide a full and accurate summary of any actions taken, and
the reasons therefor, including a description of each of the views
expressed on any item and the record of any rollcall vote (reflecting
the vote of each member on the question). All documents considered in
connection with any action shall be identified in such minutes.
"(2) The agency shall make promptly available to the public, in a
place easily accessible to the public, the transcript, electronic record-
ing, or minutes (as required by paragraph (1)) of the discussion of
any item on the agenda, or of any item of the testimony of any witness
received at the meeting, except for such item or items of such discus-
sion or testimony as the agency determines to contain information
which may be withheld under subsection (c). Copies of such transcript,
or minutes, or a transcription of such recording disclosing the identity
of each speaker, shall be furnished to any person at the actual cost of
duplication or transcription. The agency shall maintain a complete
verbatim copy of the transcript, a complete copy of the minutes, 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 meet-
ing, or until one year after the conclusion of any agency proceeding
with respect to which the meeting or portion was held, whichever
occurs later.
"(g) 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 Office of the Chairman of the Administrative
Conference of the United States and published notice in the Federal
Register of at least thirty days and opportunity for written comment
by any person, promulgate regulations to implement the requirements
S. 5-5
of subsections (b) through (f) of this section. Any person may bring a
proceeding in the United States District Court for the District of
Columbia to require an agency to promulgate such regulations if such
agency has not promulgated such regulations within the time period
specified herein. Subject to any limitations of time 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 pur-
suant to this subsection that are not in accord with the requirements of
subsections (b) through (f) of this section and to require the pro-
mulgation of regulations that are in accord with such subsections.
'(h) (1) The district courts of the United States shall have jurisdic-
tion to enforce the requirements of subsections (b) through (f) of this
section by declaratory judgment, injunctive relief, or other relief as
may be appropriate. Such actions may be brought by any person against
an agency 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 pur-
suant to this section at any time prior to sixty days after any public
announcement of such meeting. Such actions may be brought in the dis-
trict court of the United States for the district in which the agency
meeting is held or in which the agency in question has its headquarters,
or in the District Court for the District of Columbia. In such actions
a defendant shall serve his answer within thirty days after the service
of the complaint. The burden is on the defendant to sustain his action.
In deciding such cases the court may examine in camera any portion of
the transcript, electronic recording, or minutes 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 pub-
lic interest, as well as the interests of the parties, may grant such
equitable relief as it deems appropriate, including granting an injunc-
tion against future violations of this section or ordering the agency to
make available to the public such portion of the transcript, recording,
or minutes of a meeting as is not authorized to be withheld under sub-
section (c) of this section.
"(2) Any Federal court otherwise authorized by law to review
agency action may, at the application of any person properly partici-
pating in the proceeding pursuant to other applicable law, inquire into
violations by the agency of the requirements of this section and afford
such relief as it deems appropriate. Nothing in this section authorizes
any Federal court having jurisdiction solely on the basis of paragraph
(1) to set aside, enjoin. or invalidate any agency action (other than
an action to close a meeting or to withhold information under this
section) taken or discussed at any agency meeting out of which the
violation of this section arose.
"(i) 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) or (h) of this section, except that
costs may be assessed against the plantiff only where the court finds
that the suit was initiated by the plantiff primarily for frivolous or
dilatory purposes. In the case of assessment of costs against an agency,
the costs may be assessed by the court against the United States.
"(j) 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
S.5-6
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, including any
costs assessed against the agency in such litigation (whether or not
paid by the agency).
(k) Nothing herein expands or limits the present rights of any
person under section 552 of this title, except that the exemptions set
forth in subsection (c) of this section shall govern in the case of any
request made pursuant to section 552 to copy or inspect the transcripts,
recordings, or minutes described in subsection (f) of this section. The
requirements of chapter 33 of title 44, United States Code, shall not
apply to the transcripts, recordings, and minutes described in subsec-
tion (f) of this section.
(1) This section does not constitute authority to withhold any
information from Congress, and does not authorize the closing of any
agency meeting or portion thereof required by any other provision of
law to be open.
(m) Nothing in this section authorizes any agency to withhold
from any individual any record, including transcripts, recordings, or
minutes required by this section, which is otherwise accessible to such
individual under section 552a of this title.".
(b) The chapter analysis of chapter 5 of title 5, United States Code,
is amended by inserting:
"552b. Open meetings."
immediately below:
"552a. Records about individuals.".
EX PARTE COMMUNICATIONS
SEC. 4. (a) Section 557 of title 5, United States Code, is amended by
adding at the end thereof the following new subsection
(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
knowingly cause to be made to any member of the body compris-
ing the agency, administrative law judge, or other employee who
is or may reasonably be expected to be involved in the decisional
process of the proceeding, an ex parte communication relevant to
the merits of the proceeding;
"(B) no member of the body comprising the agency, adminis-
trative law judge, or other employee who is or may reasonably be
expected to be involved in the decisional process of the proceed-
ing, shall make or knowingly cause to be made to any interested
person outside the agency an ex parte communication relevant 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 proceed-
ing who receives, or who makes or knowingly causes to be made,
a communication 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
S.5-7
(iii) all written responses, and memoranda stating the
substance of all oral responses, to the materials described in
clauses (i) and (ii) of this subparagraph;
"(D) upon receipt of a communication knowingly made or
knowingly caused to be made by a party in violation of this sub-
section, the agency, administrative law judge, or other employee
presiding at the hearing may, to the extent consistent with the
interests of justice and the policy of the underlying statutes,
require the party to show cause why his claim or interest in the
proceeding should not be dismissed, denied, disregarded, or other-
wise adversely affected 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 case
the prohibitions shall apply beginning at the time of his acquisi-
tion of such knowledge.
"(2) This subsection does not constitute authority to withhold infor-
mation from Congress.".
(b) Section 551 of title 5, United States Code, is amended-
(1) by striking out "and" at the end of paragraph (12) ;
(2) by striking out the "act." at the end of paragraph (13) and
inserting in lieu thereof "act and"; and
(3) by adding at the end thereof the following new paragraph:
(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, but it shall not include
requests for status reports on any matter or proceeding covered
by this subchapter.".
(c) Section 556(d) of title 5, United States Code, is amended by
inserting between the third and fourth sentences thereof the following
new sentence "The agency may, to the extent consistent with the inter-
ests of justice and the policy of the underlying statutes administered
by the agency, consider a violation of section 557 (d) of this title suffi-
cient grounds for a decision adverse to a party who has knowingly
committed such violation or knowingly caused such violation to
occur.".
CONFORMING AMENDMENTS
SEC. 5. (a) Section 410(b) (1) of title 39, United States Code, is
amended by inserting after "Section 552 (public information),' the
words "section 552a (records about individuals), section 552b (open
meetings),"
(b) Section 552(b) (3) of title 5, United States Code, is amended to
read as follows:
"(3) specifically exempted from disclosure by statute (other
than section 552b of this title), provided that such statute (A)
requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue, or (B) establishes
particular criteria for withholding or refers to particular types
of matters to be withheld;"
(c) Subsection (d) of section 10 of the Federal Advisory Committee
Act is amended by striking out the first sentence and inserting in lieu
thereof the following: "Subsections (a) (1) and (a) (3) of this section
shall not apply to any portion of an advisory committee meeting where
S. 5-8
the President, or the head of the agency to which the advisory com-
mittee reports, determines that such portion of such meeting may be
closed to the public in accordance with subsection (c) of section 552b
of title 5, United States Code.".
EFFECTIVE DATE
SEC. 6. (a) Except as provided in subsection (b) of this section, the
provisions of this Act shall take effect 180 days after the date of its
enactment.
(b) Subsection (g) of section 552b of title 5, United States Code, as
added by section 3(a) of this Act, shall take effect upon enactment.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.
FOR IMMEDIATE RELEASE
September 13, 1976
Office of the White House Press Secretary
THE WHITE HOUSE
FACT SHEET
GOVERNMENT IN THE SUNSHINE ACT (S. 5)
The President today signed the Government in the Sunshine Act
of 1976.
BACKGROUND
The purpose of this Act is to increase the opportunity for
the public to observe governmental decision-making and to
enhance the public's faith in the integrity of government.
The bill was sponsored by Senator Lawton Chiles (D.-Fla.)
and 40 others who urged "that the Government conduct the
people's business in public."
GOVERNMENT IN THE SUNSHINE ACT (S. 5)
The Act requires multiheaded agencies, e.g., the independent
regulatory agencies and other agencies such as the Civil
Service Commission, the United States Postal Service, the
Export-Import Bank and the governing board of the National
Science Foundation, to hold their meetings open to the
public unless any of ten specific reasons for holding
closed meetings is present. These agencies will be re-
quired to give advance notice of meetings where possible.
In addition, verbatim transcripts of certain closed meetings
will be made available to the public. The Act affords
judicial remedies when an agency has not complied with these
procedures.
The Act has five key features:
-- Requires generally that meetings of the members of
multiheaded Executive agencies be open to public
observation with certain specified exceptions;
-- Establishes procedures for closing certain meetings
to the public;
--
Provides for judicial review of agency action regarding
open meetings and related provisions;
-- Prohibits ex parte communications in certain adminis-
trative hearings; and,
--
Amends the Freedom of Information and Federal Advisory
Committee Acts.
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FOR IMMEDIATE RELEASE
SEPTEMBER 13, 1976
OFFICE OF THE WHITE HOUSE PRESS SECRETARY
THE WHITE HOUSE
REMARKS OF THE PRESIDENT
UPON SIGNING
S. 5, "GOVERNMENT IN THE SUNSHINE" BILL
THE ROSE GARDEN
12:07 P.M. EDT
Distinguished Members of the House and the Senate,
members of the Administration and guests:
It is my great privilege and honor this morning
to sign into law S. 5, the 'Government in Sunshine Act."
I strongly endorse the concept which underlies
this legislation, that the decision-making process and the
decision-making business of regulatory agencies must be
open to the public.
I congratulate the Members of the Congress in
making certain that this legislation comes to the White
House and is available for my signature on this occasion.
In a democracy, the public has a right to know,
not only what the Government decides, but why and by what
process.
Today, many citizens feel that their Government
is too remote; that it is not responsive to their needs.
This legislation should go a long way in reaffirming that
Government exists for the people, not apart from the people.
Under this law some 50 regulatory agencies,
including the Securities and Exchange Commission, the Civil
Service Commission and the National Science Board, are
required to give advance notice of their meetings and then
hold these meetings in public. If an agency votes to close
a session for one of the specific reasons set forth in the
law, verbatim transcripts of most such meetings would be
available to the public.
The law also prohibits any communication between
agency officials and outside persons having an interest in
matters being considered before a regulatory body. Further-
more, the Freedom of Information Act has been amended by
narrowing the authority of agencies to withhold information
from the public.
The "Government in the Sunshine Act" is in keeping
with America's proud heritage that the Government serves
and the people rule.
This afternoon, I am delighted to sign this
legislation and to reaffirm that heritage and let the
sunshine in.
END
(AT 12:09 P.M. EDT)
FOR IMMEDIATE RELEASE
SEPTEMBER 13, 1976
Office of the White House Press Secretary
THE WHITE HOUSE
STATEMENT BY THE PRESIDENT
I have today signed into law S. 5, known as the
"Government in the Sunshine Act". I strongly endorse the
concept which underlies this legislation -- that most of
the decisionmaking business of regulatory agencies can and
should be open to the public.
Under this new law, certain agencies, such as the
Securities and Exchange Commission, the Civil Service
Commission and the National Science Board -- approximately
50 in all --- are required to give notice in advance and
hold their business meetings open to public observation,
unless the agency votes to close a session for a specific
reason permitted by the Act. Verbatim transcripts would
be required to be maintained and made available to the
public for many of the closed meetings.
Communications between agency officials and outside
persons having an interest in a statutorily required hearing
or an adjudication are prohibited. Furthermore, the pro-
vision of the Freedom of Information Act which permits an
agency to withhold certain information when authorized to
do so by statute has been narrowed to authorize such with-
holding only if the statute specifically prohibits disclosure,
or establishes particular criteria for the withholding, or
refers to particular types of matters to be withheld. The
new Act also amends the Federal Advisory Committee Act to
permit the closing of such committee meetings for the same
reasons meetings may be closed under this Act.
I wholeheartedly support the objective of Government
in the Sunshine. I am concerned, however, that in a few
instances unnecessarily ambiguous and perhaps harmful
provisions were included in S. 5.
The most serious problem concerns the Freedom of
Information Act exemption for withholding information
specifically exempted from disclosure by another statute.
While that exemption may well be more inclusive than
necessary, the amendment in this Act was the subject of
many changes and was adopted without a clear or adequate
record of what statutes would be affected and what changes
are intended. Under such circumstances, it can be antici-
pated that many unintended results will occur including
adverse effects on current protections of personal privacy,
and further corrective legislation will likely be required.
Moreover, the ambiguous definition of the meetings
covered by this Act, the unnecessary rigidity of certain of
the Act's procedures, and the potentially burdensome require-
ment for the maintenance of transcripts are provisions which
may require modification. Implementation of the Act should
be carefully monitored by the Executive branch and the
Congress with this in mind.
more
2
Despite these concerns, I commend the Congress both for
its initiative and the general responsiveness of this legis-
lation to the recommendations of my Administration that the
"Government in the Sunshine Act" genuinely benefit the
American people and their Government.
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