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The original documents are located in Box 8, folder "Congressional - Sunshine Law" of the
Philip Buchen 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States of America his copyrights in all of his unpublished writings in National Archives collections.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.
Digitized from Box 8 of the Philip Buchen Files at the Gerald R. Ford Presidential Library
THE WHITE HOUSE
WASHINGTON
December 9, 1975
MEMORANDUM FOR:
VERN LOEN
THROUGH:
PHIL BUCHEN
P.W.B.
FROM:
KEN LAZARUS
SUBJECT:
S. 5 "Sunshine Law"
We have been following the development of S. 5 and H.R. 10315,
bills to create a so-called "Government in the Sunshine Act."
A number of independent regulatory agencies and several
Executive Branch departments are in the process of presenting
their objections to the measure before Representative Abzug's
Government Operations Subcommittee.
Attached for your information is a copy of a letter and attachment
commenting on H. R. 10315 from OMB to Representative Brooks,
Chairman of the full Committee on Government Operations which
was recently cleared by this office. This letter represents the
- closest thing to an "Administration" position on the matter at
the present time.
Please continue to keep us advised of further developments in
this regard.
Thank you.
Attachment
FORD i LIBRARY CLARLD
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
December 8, 1975
Honorable Jack Brooks
Chairman, Committee on
Government Operations
House of Representatives
Washington, D.C. 20515
Dear Mr. Chairman:
This is in response to your request for the views of the
Office of Management and Budget on H.R. 10315, the "Govern-
ment in the Sunshine Act." Members of our respective staffs
have held discussions concerning this bill.
The bill would require generally that meetings of the mem-
bers of multiheaded Executive agencies be open to public
observation. A meeting could be closed to the public if its
subject matter fell within one of the bill's exemptions, but
the agency would be required to prepare and maintain a tran-
script of the proceedings.
The purposes of the bill are to increase public understand-
ing of the reasons for governmental decisions and to enhance
the public's faith in the integrity of government. We support
those objectives, but we perceive serious problems with this
legislation. Some of these problems stem from the bill's
drafting and others from its underlying concepts. Our prin-
cipal objections to the bill are discussed in some detail in
the attachment to this letter. Our most important concerns
are summarized briefly in the paragraphs below.
The bill's definition of the agencies it would cover is
unclear, and would lead to unnecessary confusion and litiga-
tion. We believe that the affected agencies should be specif-
ically listed. Likewise, the bill's definition of the meet-
ings it would cover could lead to serious difficulties. The
bill's definition would make the decision as to whether there
will be a meeting dependent upon what happens at the meeting.
We believe that only those gatherings held for the purpose of
jointly conducting agency business should be included.
FORD LIBRARY
2
Exception (9) of the bill permits the closing of a meeting
when it would concern an agency's participation in a civil
action in a Federal or State court. This exception should
be broadened to include civil and criminal proceedings as
well as actions before other agencies, foreign courts, and
international tribunals, and arbitration proceedings.
The requirement that a vote be taken in order to close each
meeting is unnecessarily burdensome upon those agencies which
deal primarily with exempted matters. They should be per-
mitted to close all such meetings by regulation.
We do not believe that the bill's exceptions are broad enough
to protect the public interest in the case of agencies, such
as the Federal Reserve Board and the Securities and Exchange
Commission, which are charged with regulating financial in-
stitutions and securities and financial markets. A suggested
amendment to correct this deficiency is set forth in the
attachment to this report.
The bill's judicial review provisions also present difficul-
ties. For example, they provide that district courts may
entertain an action by any person to enforce the requirements
of the bill by declaratory judgment, injunction, or other
relief. It should be made clear that this bill does not
authorize a court to set aside agency actions even if those
actions were taken in a meeting improperly closed to the
public. In our view, such a result would be unwarranted
and would increase uncertainty, costs and delays in agency
proceedings. The bill would also permit the assessment of
attorney fees and litigation costs against individual agency
members under certain circumstances. This provision would
have the undesirable effects of inhibiting the willingness of
qualified persons to accept agency appointments and inhibiting
the performance of official duties by those in office.
In summary, we support the purposes of H.R. 10315, but we
believe that those objectives can be and should be accomplished
with far more certainty and far less disruption and delay in
agency proceedings than this bill would provide.
The Office of Management and Budget is opposed to the favor-
able consideration of H.R. 10315 in its present form.
Sincerely,
James M. Frey
Assistant Director for
Legislative Reference
FORD & LIBRARY GERALD
Attachment
ATTACHMENT
The bill presently defines the agencies it would cover by
an expansive definition of uncertain scope. Such a
definition may well be appropriate for purposes of the
Administrative Procedures Act, but is most inappropriate,
expansive and unnecessary in this bill. The agencies
sought to be covered are not numerous and can be specifically
listed, thereby avoiding the seemingly endless disputes and
litigation concerning coverage that we and other agencies
have found to be SO costly and time consuming in analogous
situations. A successful precedent for this approach is the
Government Corporation Control Act of 1945, 31 U.S.C. 841
et seq. This Act has been amended on several occasions
to add or delete from its scope particular corporations,
a practice which would be appropriate for H.R. 10315.
Absolute clarity of coverage not only avoids the cost
of the obvious uncertainties but also simplifies the
drafting of other provisions of the bill, and the process
of formulating the list of agencies need not be a pro-
tracted one.
A meeting is defined by the bill to be a gathering of
the members of the agency where deliberations on agency
business occur. Other provisions of the bill provide
for advance public notice of these meetings and an
opportunity for the injunction of them if closed to
public observation. The defintion of meeting is therefore
crucial to the bill, for if there is not a meeting, the
bill would not apply. It is also crucial that the
requirements of a meeting be understood by the public and
by the courts in advance of the actual holding of a
meeting. This understanding is necessary if the agency
is to bear its burden of justifying any decision to
close a meeting in reliance upon the exceptions to the open
meeting requirement. Unfortuately, the definition of
meeting in the bill is dependent upon what occurs at a
gathering. This paradoxical standard may be very difficult
to demonstrate in advance, and may significantly frustrate
the use of the exemptions in the bill. To the extent
that the bill seeks to reduce any public suspicion con-
cerning the manner in which the business of these agencies
is conducted--an objective with which we agree--the un-
usual definition of meeting may well defeat this purpose
by requiring agencies to demonstate the impossible in
order to justify closing a meeting for a reason which
the Congress would acknowledge as necessary.
We would urge that a definition of meeting take the more
usual form--a gathering with a purpose. Purpose is a
common element in judicial determinations and capable
of expression and proof in advance of any meeting. Any
FORD VIBRARY
2
concern that real agency business will be conducted at
gatherings called for other purposes should be met by
expressly precluding the conduct of agency business in
such gatherings without compliance with this bill.
H.R. 10315 significantly improves S. 5 by the addition
of a definition of "member". This definition can be
simplified by the elimination of the Presidential
appointment limitation if the agencies are listed in the
bill. A definition of "official agency business" should
also be added.
The agencies which would be covered by the bill are in
the best position to provide comment upon the extent to
which the exceptions to the requirement for meetings to
be open to public observation meet their needs. Generally,
however, since to some extent the exceptions in this
bill track those in the Freedom of Information Act, the
exceptions anticipate the existence of agency records
as a requirement for closing. For instance, closing to
avoid disclosing information contained in investigatory
records is permitted upon the assumption that in all
such instances there will be a record. The exceptions
in the bill should insure that gatherings to discuss
information not based on a record, but which if written
would be such a record, may also be closed.
We believe that the exception for trade secrets and
commercial or financial information should read exactly
as the provision does in 5 U.S.C. 552 (b) (4) the Freedom
of Information Act. The reason for the language in
the bill is not clear but it will raise questions as
to why the change was made and its impact. While we
agree with the concern the bill expresses for the
privacy of individuals, we are concerned that as pre-
sently stated the bill does not facilely interface
with the Privacy Act. The bill would establish as a basis
for closing a meeting a standard based upon "a clearly
unwarranted invasion of personal privacy," as does the
Freedom of Information Act, and a similar test for dis-
closures to third persons is carried through into the
Privacy Act of 1974, 5 U.S.C. 552a (b) (2). This bill
should not require the disclosure of information which
would not be required to be disclosed to the public by
the Privacy Act. We also do not agree that Federal
employees surrender their privacy safeguards "with
respect to [their] official duties or employment."
FORD
LIBRARY
3
The paragraph limiting the utilization of exception (7)
should be modified to permit the closing of a meeting even
if there has been an unauthorized disclosure of some
information pertaining to such meeting. The limitation
as now written not only sanctions unauthorized disclosures,
but provides an incentive for such disclosures. The
limitation should be applicable only when the agency
makes or when it is required by law to make a disclosure.
This exception (7) permits a closing in order to avoid
untimely disclosure of an action when it would be likely
to seriously frustrate the proposed agency action. Often,
it is not the action which would be frustrated, but the
policy underlying it. For example, release of information
indicating an agency's interest in the acquisition of a
certain tract of land may not frustrate the purchase of
that land, but the acquisition at twice the price as a
result of the speculation fostered by the disclosure
would frustrate the policy underlying the proposed land
acquisition. This provision should be modified accordingly.
Exception (9) authorizes a closing when the meeting would
concern an agency's participation in a civil action in
Federal or State court and also for matters generally
within the scope of 5 U.S.C. 554. Although exceptions
for criminal activities are present elsewhere in the
bill, to avoid any question the bill should be amended
to cover criminal actions as well. This exception should
cover civil and criminal proceedings as well as actions,
and such actions and proceedings should not be limited
to State and Federal courts, but should, as several other
agencies have urged, cover actions before other agencies
and in foreign courts and other international tribunals
and in arbitration proceedings. Furthermore, the citation
in the bill to the procedures in Section 554 of Title 5---
adjudicatory proceedings--eliminates as a basis for closing
meetings the exceptions to Section 554 which also should
be bases for closings. Section 553 of Title 5--the
informal rule making provision--is itself a "sunshine"
provision since it opens to public comment and participa-
tion most agency rule makings. This has been one of the
most significant and successful provisions of the Admini-
8.
FOND
strative Procedures Act. The proceedings which lead to
GERALD
4
the proposals which are subject to Section 553 should be
permitted to be handled as they are now and it is
recommended that the bill be modified to permit agencies
to form the proposals subject to Section 553 without
public observation if they choose to do SO.
There are, of course, often statutes which require the
withholding of certain information from the public.
Exception (10) permits the closing of meetings which would
disclose such information only for certain of these
statutes. The effect of the bill in some instances would
be to compel the disclosure in an open meeting of in-
formation specifically exempted from disclosure by another
statute. We do not believe that H.R. 10315 should repeal
existing law and require the disclosure of information
specifically exempted from disclosure by statute. Such
statutes have been enacted by Congress over the years to
deal with situations where governmental concerns are
overriding. The Freedom of Information Act did not repeal
those provisions, and we see no justification for doing
so now.
As to the procedures for closing meetings of these
agencies, we believe that the number of members who are
entrusted to take action on behalf of an agency in a
meeting should be entrusted as well to determine whether
such meeting satisfies the requirements of these exceptions
and whether such meetings therefore should be closed. To
require that for each such determination a majority of
the entire membership must vote for such action would, we
believe, impede the prompt conduct of the agency business,
the necessity for which the bill in other areas provides.
As presently drafted, H.R. 10315 permits any person whose
interests may be directly affected to require a vote to
close a meeting for reasons set forth in exceptions (3),
(4) or (5). Similar concerns underlie exceptions (6), (7),
(8) and (1) and should also permit any such person to
require a vote to close a meeting.
In order to reduce the administrative impact and costs of
the bill, any agency a majority of whose meetings may be
closed to the public, should be able to provide for such
closing by regulations, and not merely when the closing is
for reasons set forth in exceptions (6), (7) (A), (8) or
as H.R. 10315 now provides.
FORD LIBRANY
5
H.R. 10315 permits an action to be brought in Federal
district court for any violations of this bill against
the agency and against any of the individual members of
an agency. The bill also provides that in certain
instances reasonable attorney fees and other litigation
costs may be awarded against the agency and against the
individual members. This potential personal liability
on behalf of the individual members in the performance of
their official duties is not in our opinion in the best
interests of our Government. The spector of a personal
defense for the performance of official duties would have
an inhibiting effect upon the performance of such duties
and upon the willingness of talented people to accept
appointments to these positions. These provisions should
be deleted.
The Senate Report on S. 5 indicates that that bill did not
provide a basis for enjoining, voiding or setting aside
of any agency action taken at a meeting. Thus, judicial
action to enjoin, void or set aside agency action even if
taken in a meeting improperly closed to public observation,
cannot be based upon S. 5 and in our opinion should not be.
Since H.R. 10315 uses the same language as S. 5, we trust
that this most important aspect is your understanding as
well. At a time when the Congress and the Executive are
actively reviewing Governmental activities in general and
the regulatory process specifically to reduce costs and
delays, a provision permitting injunctions and encouraging
protracted litigation on purely procedural grounds must be
avoided.
There are other provisions of H.R. 10315 which, in part,
because of the draftsmanship unnecessarily increase
administrative difficulties and attendant costs and delay.
For instance, the bill as drafted requires the members to
have a second meeting to read a transcript of a closed
meeting to vote on releasability of portions of it. By
requiring instead that the agency release upon request,
such portions of the transcripts as are not exemptable, the
same results are achieved without a requirement for a
second meeting to review the first. Furthermore, such
an approach utilizes procedures to which agencies are now. FORD
GERALD
LIBRARY
6
accustomed; e.g., the Freedom of Information Act, permits
delegation of initial decisions to an appropriate admini-
strative official and allows agencies to establish
administrative appeals within the agencies in instances
of a denial of access to assist in reducing litigation.
There are many aspects to the judicial review provisions
of the bill which seem unnecessary. For example, sub-
section (i) in its entirety does not appear to add anything
to the bill or existing law except confusion engendered
by speculation about its purpose. In the interests of
some certainty to the subject matter covered by the bill,
there should be a time limit on the judicial review
provisions beyond which the various actions may not be
brought. Also, the accelerated judicial review provisions
have became more burdensome and difficult to attain as a
result of the impositions of rigorous time demands in
criminal proceedings and accelerated procedures in other
civil actions and proceedings. Alternatives to these
provisions should be considered.
The manner in which this bill would impact upon or con-
flict with other laws must be provided for more carefully
than the bill currently provides. For instance, the
repeal of other laws precluding disclosure of information
has already been mentioned. The lack of interface pro-
visions with the Federal Advisory Committee Act, 5 U.S.C.
App. I, also requires a statutory resolution. Although
the Senate Report on S. 5 recognizes the conflict
between this bill and the Federal Advisory Committee
Act in certain instances, S. 5 and H.R. 10315 do not
provide by their terms, as they should, for a resolution
of this conflict. If the agencies which would be covered
by this bill are listed as we have recommended, agencies will
not be covered both by this bill and the Federal Advisory
Committee Act. However, when agencies which would be
covered by this bill meet with advisory committees, the
bill should provide for which provisions apply.
We also share the concern underlying the request of some
agencies for a new subsection as follows that could be
subsection (m) redesignating the present subsection (m)
and (n) as (n) and (o) respectively:
GERALD FORD LIBRAST
7
"The requirements and provisions of this
section shall not apply to the meetings
of any agency which are likely to involve
a discussion of information which, if
disclosed, might, in the view of the agency
involved, have an adverse effect on the
financial markets in which securities are
traded or on the professional participants
in and self-regulators of the securities
markets. "
Section 5 of the bill would, as S. 5 would, prohibit ex parte
communications in situations where agency determinations are
required to be reached only on the record after an opportunity
for hearing. We agree that such determinations should be
based exclusively upon the administrative record, but we
share the concern of many agencies including the Department
of Justice that the provisions are overly broad as written
and may be more appropriately handled by requiring agencies
to set forth regulations in compliance with principles
which would be set forth in the bill.
BLERLE FORD LIBRARY
THE WHITE HOUSE
WASHINGTON
November 7, 1975
MEMORANDUM FOR:
PHILIP BUCHEN
THROUGH:
MAX FRIEDERSDORF
m.6.
FROM:
VERN LOEN
n
SUBJECT:
S. 5 "Sunshine Law"
This measure provides that meetings of government agencies and
Congressional committees shall be open to the public.
The Administration's position as stated by OMB is that we do not
object to the purpose of the bill, but oppose it as reported because
of its imprecision and numerous technical deficiencies. For example,
the bill fails to state clearly what activities are subject to its provisions
or even what agencies are covered.
S. 5 passed the Senate on Thursday, November 6, 94-0, after rejecting
by a vote of 36-57 the Javits' amendment to exempt Federal Reserve
Board operations. The Federal Reserve was the only target agency
which actively sought an exemption.
Among other agencies which would be affected are the FCC, the FDIC,
the FHLBB and any other agencies headed by a Presidential appointee
and run by a board of directors.
This is not only a "motherhood" bill, but places us in an institutional
fight between the Executive and the legislative. Arthur Burns, I
understand, is really worked up about it and will be contacting Jim
Lynn.
Hearings began yesterday before Rep. Bella Abzug's Government
Operations Subcommittee on Government Information and Individual
Rights. Minority Members are Rep. Sam Steiger (R-Ariz.), Clarence
Brown (R-Ohio) and Paul McCloskey (R-Calif.). There are eight
Democratic Members of an extremely liberal stripe. The full
committee is equally hostile.
GERALE FORD LIBRARY
-2-
In view of the prohibition on contacting independent agencies, it would
appear that we need some guidance as to what the Administration
position should be with regard to each affected agency and what proper
strategy can be utilized. Otherwise, the President may be called
upon to veto a bill with no hope of sustaining.
It is too late for action in the House during the remainder of this
session, but Administration witnesses should be directed to request
time and suggest amendments as the subcommittee level. If it is not
cleaned up in subcommittee or full committee, there is little hope on
the House floor.
A copy of the bill, S.5, will be forthcoming.
GENALD FORD LIBRANT
THE WHITE HOUSE
fundie
WASHINGTON
January 26, 1976
MEMORANDUM FOR THE PRESIDENT
THROUGH:
PHILIP BUCHEN
T.
FROM:
KENNETH LAZARUS
pl
On Wednesday, January 21, the House Government Operations
Subcommittee on Government Information and Individual Rights
reported out their version of H.R. 11007, the so-called
"Government in the Sunshine" bill. The Senate has already
passed its companion measure. The fundamental concept embodied
in this legislation is that all multiheaded agencies, e.g. regulatory
agencies, must hold their meetings open to the public.
Significant difficulties, aside from its fundamental concept,
remain in this bill. However, the draft which will go to the full
House Government Operations Committee is a substantial
improvement as a result of the efforts of Representative Pete
McCloskey. Although in the minority by six to one during
consideration of the bill, he forced many changes and his help
will be needed again in full Committee. The attached letter
memorializes his contribution and hopefully encourages his
further assistance. Congressional Relations concurs in the
recommendation that the letter be forwarded at this time.
This letter does not limit any future options which may be
available to you. These will be explored further in a memorandum
which is being prepared by Jack Marsh.
Attachment
FORD i LIBRARY GERALD
THE WHITE HOUSE
WASHINGTON
January 26, 1976
Dear Pete:
I have watched with interest your efforts at making
the "Government in the Sunshine" bill a better
product. Although the bill as reported out of the
Government Information and Individual Rights
Subcommittee still requires significant changes,
had it not been for your hard work and patience
the important changes that have been made would
not have occurred.
I applaud your work and hope that you will continue
in your efforts to improve the bill.
With warmest personal regards,
Sincerely,
Honorable Paul N. McCloskey
House of Representatives
Washington, D. C. 20515
GERALD LIBRARY ? FORD
full
THE WHITE HOUSE
WASHINGTON
August 5, 1976
ADMINISTRATIVELY CONFIDENTIAL
MEMORANDUM FOR:
KENNETH A. LAZARUS
THROUGH:
PHILIP W. BUCHEN
FROM:
JAMES E. CONNOR JEC
SUBJECT:
H.R. 11656 and S. 5 --
"Government in the Sunshine"
Bills
Confirming phone call to Ken Lazarus earlier today the President
reviewed your memorandum of July 30 on the above subject and
disapproved your recommendation that he release a statement
supporting the House action. He further requested that this matter
be handled verbally.
Max Friedersdorf will take appropriate action.
cc: Dick Cheney
Max Friedersdorf
Robert Linder (with file)
FORD is LIBRARY 07V839
2ays
PWB
THE WHITE HOUSE
WASHINGTON
July 30, 1976
MEMORANDUM FOR THE PRESIDENT
THROUGH:
PHILIP W. BUCHEN
R.
FROM:
KENNETH A. LAZARUS
Q
SUBJECT:
H.R. 11656 and S. 5 -- "Government
in the Sunshine" Bills
Both of the above-captioned bills would require that certain
"multiheaded" agencies, e.g., FTC, SEC, CSC, FRB, etc. --
about 50 -- give advance notice of their meetings and hold them
open to public observation unless they vote to close a session
for reasons specifically enumerated in the bill.
On July 28, the House passed H.R. 11656 which incorporated
all of the significant proposals which the Administration has
made on this legislation. H.R. 11656 is now ready for Conference
with its Senate counterpart S. 5, a bill which although it contains
some very undesirable provisions, passed the Senate 94-0 on
November 6, 1975.
The most important changes made in H.R. 11656, and the basic
differences between it and S. 5 are:
-- the deletion of provisions permitting civil
actions to be brought against the individual
members of the agencies for asserted
violations of the Act;
-- the deletion of a verbatim transcript require-
ment for all closed meetings;
FORD LIBRARY is GERALD
-2-
-- limiting the meetings covered to those
held for the purpose of conducting
business, thereby eliminating social
events and casual encounters;
-- limiting an amendment to the Freedom
of Information Act to avoid repealing
certain other statutes which prohibit the
disclosure of information;
-- limiting the venue provisions for
enforcement of the Act;
-- precluding reversal of action taken at a
meeting for violations of this Act.
At this juncture, H.R. 11656 is acceptable and S. 5 is not,
although it would be most difficult to veto it and have it
sustained. In order to urge the conferees to favor the House
version, I recommend that you approve the press release
which is attached supporting the House action.
Approve
Disapprove
&
YORK
GERALD
LIBRARY
THE WHITE HOUSE
WASHINGTON
1/30
Ken taok the
Sunshine mat'l
wy him to
Have Mergen's 's
office. Will send
us copies 8 pegned
mate.
THE WHITE HOUSE
WASHINGTON
July 30, 1976
MEMORANDUM FOR:
VPHIL BUCHEN
JIM CANNON
MAX FRIEDERSDORF
PAUL O'NEILL
FROM:
Recalling the senior staff meeting on and the
JACK July
discussion of the Sunshine Bill, what status of
this legislation?
It is my recollection at the staff meeting the consensus was there
should be no position taken by the Administration on the Conference
Report. Is this still the best course of action, or is there some
other recommendation as to how to proceed?
Many thanks.
cc: Dick Cheney
LIBRARY