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Office of Management and Budget - Legislation (1)
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Philip W. Buchen Files
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Office of Management and Budget. (07/01/1970 - )
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The original documents are located in Box 36, folder "Office of Management and Budget -
Legislation (1)" 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States of America his copyrights in all of his unpublished writings in National Archives collections.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 36 of the Philip Buchen Files at the Gerald R. Ford Presidential Library
OM OMB B
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
DATE: 3.7.75
TO: Buches
FROM:
Robert F. Bonitati
Assistant to the Director
for Congressional Relations
395-3381
(Code 103)
The attached is provided for your information.
OMB FORM 38
REV AUG 73
033ALD FORD LIBRARY
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
S
WASHINGTON, D.C. 20503
March 4, 1975
To:
OMB Senior Staff
From:
Robert F. Bonitati
On February 27, House Majority Leader O'Neill inserted in the
Congressional Record the list of bills he expects to come before
the House before Easter.
The list of bills submitted by Congressman O'Neill is as follows:
National Science Foundation Authorization
NASA Authorization
Standard Reference Data Act
Non-Nuclear part of Energy Research Development Agency
Agriculture and Consumer Protection Act Amendments
Supplemental Appropriations for Jobs bill
Foreign Aid Appropriations
Legislative Appropriations
Deregulation of old oil
Health Revenue Sharing
Health Manpower
Health Service Corps
Developmental Disabilities
Nurses Training
House Interest Rate Subsidies
Housing Mortgage Assistance
Arms Control
Rhodesian Chrome
FORD LIBRARY
Missing in Action Resolution
State Department Authorization
USIA Authorization
Maritime Authorization
Strip Mining
School Lunch Amendments
Older Americans Act
Youth Camp Safety
Executive Protective Service
Voting Rights Extension
Presidential Protection
Voting Rights for ex-offenders
Repeal President's Emergency Powers
PMB
March 11, 1975
Dear Mr. Chairman:
In your letter of February 19, you inquired concerning the
Administration's views of the securities legislation pending
before your Committee. As you know, since the date of your
letter, the Departments of Treasury and Justice have testi-
fied in support of the proposed securities legislation in
the Senate.
I wish to assure you that the Administration continues to
support early passage of securities reform legislation this
session. We believe that H. R. 4111 is a sound proposal
for reforming our securities markets and we support its
basic provisions. Enactment of this legislation would bol-
ster confidence in the fairness of our capital markets,
chhance their efficiency, and strengthen the securities
industry.
We are pleased that you have decided to treat Title I of
H.R. 10, the former bill, separately. We also enthusiasti-
cally support your decision to adopt the recent amendment
to the Senate legislation which is designed to clarify the
legal authority of money managers to continue to pay for
research with commission dollars under competitive rates.
While we support the fundamental provisions of the House
bill, there are some that we would like to see modified.
We hope to have the opportunity to discuss these provisions
with the Committee during its consideration of this legisla-
tion in the coming weeks.
We intend to work closely with the Congress in seeking
prompt action on this important legislation.
Sincerely yours,
Philip W. Buchen
Counsel to the President
FORD i LIBRARY 9ERVLD
Honorable Lionel Van Deerlin
Chairman of the Committee on
Interstate and Foreign Commerce
House of Representatives
Washington, D. C. 20515
Drafted by Wally Scott, omB
THE WHITE HOUSE
WASHINGTON
July 11, 1975
MEMORANDUM FOR:
ROD HILLS
FROM:
BILL CASSELMAN
No,
Attached is an OMB memorandum on S.5, as reported by the
Senate Government Operations Committee. A meeting of concerned
OMB, Domestic Council, Justice Department officials, as well as
White House staff, will probably be held next week following com-
letion of a detailed analysis of the bill. As reported, S. 5 would
appear to be a likely veto candidate. I doubt if there is much hope
for meaningful floor amendments, but we might be able to stall
the bill in the Rules Committee.
Enclosure
FORD
is
GERALD
mr. Casselman
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
July 10, 1975
INFORMATION
MEMORANDUM FOR THE DIRECTOR
Subject: Senate Government Operations Reporting
of S. 5, Government in the Sunshine Act
On Wednesday, July 9, the Senate Government Operations Com-
mittee reported S. 5, the "Government in the Sunshine Act. "
Following adoption of several amendments en bloc (which had
been suggested by OMB and Justice representatives) and two
amendments by Senator Percy, the bill was hurdled through
without further consideration.
This meeting was scheduled when the full committee last met
on June 18 at which time the committee unanimously adopted
six substantive amendments and several technical amendments
and postponed further consideration to afford the committee
time to review the comments recently received from OMB,
Justice, and the Federal Reserve Board and to afford the
agencies who would be affected directly by S. 5 time to sub-
mit their comments by the first of July. During the interim
there were five meetings at the staff level with representa-
tives from OMB, Justice, Civil Service Commission and from
the offices of Senators Ribicoff, Chiles, Percy, Javits, and
Muskie.
Prior to the June 18 markup several agencies had submitted
comments to the committee in response to a request for their
comments by OMB which had been solicited two weeks before by
the full committee. During the interim several more of the
agencies responded.
The staff discussions were on a technical and conceptual level
with the express and unambiguous understanding that whatever
might develop from the discussions would not bind the princi-
pals on any aspect of the bill.
The bill consists essentially of three parts. The first title
requires that most formal congressional committee meetings be
open to the public unless closed by a majority vote of the
committee for certain reasons specified in the bill. The
second title requires that meetings of "collegial" agencies
FORD
LIBRARY
2
be open to the public unless closed by a majority vote of the
agency for any one or a combination of ten reasons. There is
also a requirement for public notice of all meetings and that
transcripts be kept for closed meetings. The third part of
the bill precludes ex parte communications between any member
of an agency and any interested party concerning the merits of
any matter which is the subject of a formal hearing before the
agency. The ramifications of an ex parte communication in
violation of this bill would include possible dismissal of the
matter before the agency.
From the definition of agency contained in Title II of the
bill (as interpreted by the staff) the Justice representa-
tives have stated that 49 agencies would be subject to the
open meeting provisions. These agencies consist primarily
of the so-called independent regulatory agencies and several
other agencies whose structure and manner of conducting busi-
ness are similar to the regulatories.
A detailed analysis of the bill as reported, the issues in-
volved and alternatives and recommendations will be forth-
coming upon receipt of an amended bill and report.
William m. nichols
William M. Nichols
Acting General Counsel
FORD
GERALD
THE WHITE HOUSE
WASHINGTON
July 7, 1975
MEMORANDUM FOR:
ROD HILLS
FROM:
BILL CASSELMAN
r6.
SUBJECT:
S. 5, "Government in the Sunshine Act"
Attached is a draft OMB memorandum which will bring you up-to-date
on the state of our negotiations with the Senate Government Operations
Committee. A full committee mark up is scheduled for Wednesday.
So far, there have been five meetings with the committee staff on both
conceptual and technical changes in the bill. It was mutually agreed that
any decisions reached would not be binding on either side. However, in
anticipation of the Wednesday mark up, the committee staff is now
formalizing its recommendations which probably will not be as significant
as we would have hoped. In fact, the committee Republicans Javits and
Percy--appear anxious to have us meet with the minority staff in an effort
to work out some additional amendments beyond those which the majority
staff is proposing. (Unfortunately, neither Javits nor Percy are especially
inclined to oppose, no matter what its final form, any type of "open
government" legislation. Apparently, to be against "sunshine" is to be
for "darkness").
In any event, OMB, domestic council staff, and I are desirous at this stage
of resolving the gut issue of whether OMB should take a final position prior
to mark up. However, we are still unaware of the exact language of the
committee amendments. Moreover, we have not resolved the more basic
question of whether to support the policy of this legislation. Finally, public
observation and participation in agency deliberations, as virtually every
affected regulatory agency has noted, may well be unworkable in any form.
(Enactment of the current legislation will probably give rise to clever ruses
designed to avoid the requirements of the act, such as regulatory agency
actions being informally agreed to prior to formal action in open session.
Indeed, this has been the case with the so-called "open mark ups" which
the Congress has adopted.)
FORD
CERALD
2
We will be meeting tomorrow to consider overall policy questions prior
to consulting further with the majority and minority staffs. A willingness
to work with the staffs, and perhaps attend the committee mark ups, will
put something of an imprimatur of the Administration upon the bill, even
if the amendments which we propose fail. Accordingly, we must make a
determination of whether to turn our backs completely on this legislation
as being unworkable in any form--and take the attendant political heat--or
join in trying to improve the bill with the realization that we will probably
fall considerably short of our mark.
Any suggestions would be appreciated!
FORD LIBRARY 07VH39
DRAFT: RPBedell:tas
July 7, 1975
SENATH
On Wednesday, July 9, the full Government Operations
Committee is scheduled to meet to markup S. 5, the Govern-
ment in the Sunshine Act. This meeting was scheduled, on
June 18 when the full committee last met and at which time
the committee unanimously adopted six substantive amend-
ments and several technical amendments and postponed
further consideration to afford the committee time to
review the recently received comments from OMB, Justice,
and the Federal Reserve Board and to afford the agencies
time
who would be affected directly by S. 5 to submitt their
comments by the first of July. During the interim
there have been five meetings at the staff level with
representatives from OMB, Justice, Civil Service Commis-
sion and from the Offices of Senators Ribicoff, Chiles,
Percy, Javits and Muskie. Prior to the June 18 markup
several agencies had submitted comments to the committee
in response to a request for their comments by OMB which
had been solicited two weeks before by the full commit-
tee. for its views During the interim several more of
the agencies have responded including many from the list
of forty-nine affected agencies.
The staff discussions
Have 36FN
-were on a technical and conceptual level with the express
mient
FORD is LIBRARY 038830
and unambiguous agreement that whatever may develop out
2
of the discussions would not bind the principles on any
aspect of the bill.
3
The bill now exist as Committee Print No. Three reflecting
CHANGES
the comments made at the June 18 markup. The bill itself
essentially consists of three partse the first title of
the bill applies to all congressional committee meetings
and requires that they generally be open to the public
except for certain specified reasons which could be invoked
by a majority vote of the committee itself; The second
title of the bill concerns multi-headed agencies and
requires that their meetings be open to the public unless
we
voted to be close by a majority vote of the agencies made
receive in a open session There are ten conditions under which
CIRCUMSTANCES
a meeting or a portion of a meeting may be closed to the
public There is also a requirement that public notice
be given for all such meetings and that for the closed
meetings transcribe be kept of the proceedings. The third
AND
part of the bill concerns ex parte communication applies
iN THEIN
to all agencies and the formal adjudications and formal
on TPD areas
hearings.
-It generally precludes ex parte communications
FORD is LIBRARY 07V30
between any member of an agency and any interested party
concerning the merits of any matter which is the subject
of a formal hearing. The ramifications of any such ex parte
3
communications include possible dismissal of the substantive
PARTAINED
matter about which the communication occurred. With regard
to title I of the bill, agency comments have not addressed
GENORALLY
title I stating that this is a matter solely related to
the Congress upon which it would be inappropriate for
agency comment. In the staff discussions when we explored
the possibility of combining titles I and II so that con-
gressional committees would operate in the same manner
and under the same conditions and multi-headed agencies,
several objections (including the obvious) were raised to
COMPI INGTITLEST ANDI
such a procedure There is apparently some reluctance
in the House to impose upon itself these strict rules
in statutory form especially in light of new House
rules which basically cover this area. In the Senate
there also appears to be difficulty arising out of
Senator McClellan's desire and probably others to be
excluded from statutory coverage despite the ability
nessios
to exempt committees Also there is pending in Senate
Rules, two resolutions which would address that which
was covered in title I of the bill. The Senate staff
BERALD R. FOND
indicated that it is their understanding that when
S. 5 leaves the Senate Government Operations Committee
it will go to Senate Rules Committee where title I
5.5 will S/o
will be deleted and then reported out along with the
4
two senate resolutions. Combining titles I and II to cover
both agencies and the Congress could also cause the bill
to die if it ever reached the House since joint referral
to House Government Operations, House Rules, and House
create
Judiciary would doom the pill to failure S. 5 without
title I, however, would probably be referred to the House
Government Operations Committee and the House Subcommittee
(CHAINAD BY MS. ABZRE)
on Government Information and Individual Rights where it
is probable that the bill would get the same critical and
1,
skeptical analysis as the bill would have received if
referred in the last session of Congress.
From the definition of agency contained in title II
of the bill the Department of Justice has indicated that
approximately forty-nine multi-headed agencies would be
subject to the provisions, of title II. These agencies
consist primarily of the so-called independent regulatory
agencies and several other less significant agencies whose
structure and manner of conducting business are similar
to the regulatoryts. The restriction of the bill to
multi-headed agencies is the result of the staff's
BERALD n. FORD %
professed inability to cover in a similar manner the
decisional meetings of single headed agencies. At least
as likely an explanation is the probable undesirability
and unacceptability to the Executive branch and many
5
segments of Congress to open the decisional meetings of
single headed agencies to the public. Restriction
Athicies
primarily to the independent regulatori make the pro-
spects of enactment significantly higher and establishes a
cedeat
ALL
president for openness of meetings of agencies in the
executive branch. The impetus behind the bill is
Senator Chiles of Florida who was present during the
development of that which became the Sunshine Law of
the State of Florida and for whom this bill and certain
business
the Primary Action AND serion SuBcommitition HIS NEW
procurement activities are 18 only activities. His
pressure coupled with the presence of a new Chairman of
the Senate Government Operations Committee, the unde-
sireability of being publicly postured against openness
reforms in the executive branch and the Senatorial
compe
its
and desire not to antagonize Senator Chiles
explain in part the bill's previous movement and may
also explain why the bill in some form will probably
be enacted in this session. Senators Percy, Javits,
Roth, Muskie are apparently bothered by many of the
features of the bill but would probably be constrained
in a public setting to openly oppose it passage. The
TOAB is LIBRARY
proponents of the bill have been willing and probably
will be willing to make significant changes in the scope
and coverage of the bill in a desire to avoid active
6
executive branch opposition to the bill. Of the forty-nine
agencies which would be covered an overwhelming majority OF
them are not infavor of being included within the provisions
of the bill as currently written. An Administration posture
HOSTILITY
of open house delay toward the enactment of the bill is
neither a comfortable nor consistent position. Proposals
for reform within the Executive branch of regulatory
practices may well include as an aspect thereof the
opening of the deliberate processee of these agencies to
the public.
THE EY PARTE COMmLUNiCATIon PART
Title III of bill on the other hand has a history of
THE
ten years labor on the part of various committees of the
Association
GHERAWY
American Bar Administration and more or less incorporates
HE
their major suggestions. The Administrative Conferences
on the other hand
of the U.S./has voiced something less than stentorian
support for this proposal and an alternative to this
method of dealing with ex parte communications could
well be a requirement for each agency to publish its own
standards and conditions for ex parte communications.
7NE
In any event agency comments upon title which include
ex parte communications material have not with a few
FORD in LIBRAR
exceptions been inopposition, thereto.
as
Neither OMB nor the Administration has, yet taken
a position on the merits of S. 5. We are reaping some
7
of the benefits of good feelings engendered by our contacts
with the Senate Government Operations Committee in the
Freedom of Information Act, the Privacy Act, and the
Federal Advisory Committee Act. The Senate Government
Operations Committee and the staff is anxious that we
be in attendant at the markup and that we take a position
on the bill and offer whatever amendments we think might
be appropriate.
have indicated that it may well be
impossible for OMB to take a position since we do not
know what changes will be made in the scope of the bill
as a result of the discussions we have had nor have we
seen any of the committee amendments which will be
proposed.
The fundamental question however is whether to
oppose a general policy of opening decisional and pre-
decisional meetings of the so-called independent regulatory
agencies to the public. To endorse such a policy would
in affect require that meetings be open unless the meetings
would concern matters which would be exempt under the
FORD
Freedom of Information Act except for the fifth exemption
which would not available. (The fifth exemption is the
AMBRARY
intra- and interagency correspondence which would not
be available to a party in litigation with the agency
If as a facet of regulatory reform or as a matter of
8
an open an accessible government or as a result of the
desireable posture the opposition would cause, THE POSITION were UNE
THIS Positions
tabe infavor of the policy, could result in a bill
which would open meetings of a select number of agencies
exempting those such as the Federal Reserve Board and
providing enough congressionally recognized and enacted
exemptions to permit the closing of meetings A inappropriate
necessary. Maximum leverage exists at the committee
stage since in these sessions it is easiest for changes
to be made. If enough changes were made in the bill
Some
it could even be possible to give tacit Administration
2:
approval of the bill.
FORDO 2 LIBRARY DERALD
[COMMITTEE PRINT NO. 3]
JUNE 18, 1975
Calendar No.
94TH CONGRESS
1ST SESSION
S.5
[Report No. 94-
]
IN THE SENATE OF THE UNITED STATES
JANUARY 15, 1975
Mr. CHILES (for himself, Mr. ABOUREZK, Mr. BAYH, Mr. BEALL, Mr. BIDEN,
Mr. BROCK, Mr. BROOKE, Mr. CASE, Mr. CHURCH, Mr. CLARK, Mr. CRANSTON,
Mr. GRAVEL, Mr. GARY W. HART, Mr. PHILIP A. HART, Mr. HASKELL, Mr.
HATFIELD, Mr. HATHAWAY, Mr. HELMS, Mr. HOLLINGS, Mr. HUMPHREY, Mr.
LEAHY, Mr. McGovern, Mr. MATHIAS, Mr. METCALF, Mr. MONDALE, Mr.
NELSON, Mr. PACKWOOD, Mr. PERCY, Mr. PROXMIRE, Mr. RIBICOFF, Mr.
ROTH, Mr. STAFFORD, Mr. STONE, Mr. SYMINGTON, Mr. TUNNEY, and Mr.
WEICKER) introduced the following bill; which was read twice and referred
to the Committee on Government Operations
JUNE
, 1975
Reported by Mr.
,
with an amendment
[Strike out all after the enacting clause and insert the part printed in italic]
A
BILL
To provide that meetings of Government agencies and of con-
gressional committees shall be open to the public, and for
other purposes.
1
Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3
SECTION 1. SHORT TITLE. This Act may be cited as
4 the "Government in the Sunshine Act".
J.54-192-0-1
GERALD R. FORD
2
3
1
SEC. 2. DECLARATION OF POLICY It is hereby de-
1
(1) by striking out the third sentence of section
2
clared to be the policy of the United States that the public
2
133 (b)
3
is entitled to the fullest practicable information regarding
3
(2) by striking out subsections (a), (b) and (f)
4
the decisionmaking processes of the Federal Government.
4
of section 133A;
5
SEC. 3. DEFINITIONS. For purposes of this Act-
5
(3) by adding after section 133B the following:
6
(1) "National defense" means
6
"OPEN SENATE COMMITTEE MEETINGS
7
(A) the protection of the United States and its
7
"SEO. 133C. (a) Each meeting of each standing, select,
8
military forces against actual or potential military
8 or special committee of the Senate, or subcommittee thereof,
9
attack by a foreign power;
9 including meetings to conduct hearings, shall be open to the
10
(B) the obtaining of foreign intelligence informa-
10 public: Provided, That a portion or portions of such meet
11
tion deemed essential to the military defense of the
11 ings may be closed to the public if the committee or subcom
12
United States or its forces;
12 mittee, as the case may be, determines by a vote of a majority
13
(C) the protection of information essential to the
13 of a quorum of the committee or subcommittee present that
14
military defense of the United States or its forces against
14 the matters to be discussed or the testimony to be taken at
15
foreign intelligence activities; or
15 such portion or portions
16
(D) the protection, to the extent specifically found
16
"(1) will disclose matters necessary to be kept
17
necessary by the President in writing, of the United
17
secret in the interests of national defense or the neces
18
States against overthrow of the Government by force;
18
sarily confidential conduct of the foreign policy of the
19
and
19
United States;
20
(2) "Person" includes an individual, partnership, cor-
20
"(2) will relate solely to matters of committee staff
21 poration, associated governmental authority, or public or
21
personnel or internal staff management or administra
22 private organization.
22
tion;
23
TITLE I CONGRESSIONAL PROCEDURES
23
(3) will tend to charge with crime or misconduct,
24
SEC. 101. SENATE COMMITTEE HEARING PRO
24
or to disgrace any person, or will represent a clearly
25 CEDURE. (a) The Legislative Reorganization Act of 1946
25
unwarranted invasion of the privacy of any individual:
26 is amended
26
Provided, That this paragraph shall not apply to any
5
4
1
Government officer or employee with respect to his of
1
Federal Government on a confidential basis other
2
ficial duties or employment: And provided further, That
2
than through an application by such person for a
3
as applied to a witness at a meeting, this paragraph
3
specific Government financial or other benefit, and
4
shall not apply unless the witness requests in writing that
4
the information must be kept secret in order to pre-
5
the hearing be closed to the public;
5
vent grave and irreparable injury to the competitive
6
"(4) will disclose information pertaining to any in
6
position of such person.
7
vestigation conducted for law enforcement purposes, but
7
A separate vote of the committee shall be taken with respect
8
only to the extent that the disclosure would (A) inter-
8 to each committee or subeommittee meeting a portion or por
9
fere with enforcement proceedings, (B) deprive a per
9 tions of which are proposed to be closed to the public pur
10
son of a right to a fair trial or an impartial adjudication,
10 suant to this subsection. The vote of each committee member
11
(C) disclose the identity of a confidential source and,
11 participating in each such vote shall be recorded and no
12
in the case of a record compiled by a criminal law on
12 proxies shall be allowed. Within one day of such vote, the
13
forcement authority in the course of a criminal investi-
13 committee shall make publicly available a written copy of
14
gation, or by an agency conducting a lawful national
14 such vote and, if a meeting or portion thereof is closed to the
15
security intelligence investigation, confidential informa
15 public, a full written explanation of its action.
16
tion furnished only by the confidential source, (D) dis
16
"(b) Each standing, select, or special committee of the
17
close investigative techniques and procedures, or (E)
17 Senate, or subcommittee thereof, shall make public announce-
18
endanger the life or physical safety of law enforcement
18 ment of the date, place, and subject matter of each meeting
19
personnel; or
19 at least one week before such meeting unless the committee
20
"(5) will disclose information relating to the trade
20 or subcommittee determines by a vote of a majority of a
21
secrets or financial or commercial information pertaining
21 quorum of the committee or subcommittee present that com-
22
specifically to a given person where
22 mitteo business requires that such meeting be called at an
23
"(A) a Federal statute requires the informa-
23 earlier date, in which case the committee shall make public-
24
tion to be kept confidential by Government officers
24 announcement of the date, place, and subject matter of such
25
and employees; or
25 meeting at the earliest practicable opportunity.
26
"(B) the information has been obtained by the
26
"(e) A complete transcript shall be made of each meet
6
7
1 ing of each standing, select, or special committee or subcom
1 place of each portion deleted from copies of the transcript
2 mittee (whether open or closed to the public) Except as
2 made available to the public, the committee or subcommittee
3 provided in subsection (d) of this section, a copy of each
3 shall supply a full written explanation of why such portion
4 such transcript shall be made available for public inspection
4 was deleted, and a summary of the substance of the deleted
5 within seven days of each such meeting, and additional copies
5 portion that does not itself disclose information specified in
6 of any transcript shall be furnished to any person at the actual
6 paragraph (1), (2), (3), (4), or (5) of subsection (a)
7 cost of duplication. Notwithstanding the provisions of sub-
7 The committee or subcommittee shall maintain a complete
8 section (d), in the case of meetings closed to the public, the
8 copy of the transcript of each meeting (including those por-
9 portion of such transcript made available for public inspection
9 tions deleted from copies made available to the public), for
10 shall include a list of all persons attending and their affilia
10 a period of at least one year after such meeting, or until
11 tion, except for any portion of such list which would disclose
11 the Congress following the one in which such meeting was
12 the identity of a confidential source, or endanger the life
12 hold is assembled, whichever occurs later.
13 or physical safety of law enforcement personnel.
13
"(e) A point of order may be raised in the Senate
14
"(d) In the case of meetings closed to the public pur-
14 against any committee or subcommittee vote to close a meet-
15 suant to subsection (a) of this section, the committee or sub-
15 ing to the public pursuant to subsection (a) of this section,
16 committee may delete from the copies of transcripts that are
16 or against any committee or subcommittee vote to delete
17 required to be made available or furnished to the public pur-
17 from the publicly available copy a portion of a meeting tran-
18 suant to subsection (c) of this section, those portions which
18 script pursuant to subsection (d) of this section, by com-
19 it determines by vote of the majority of a quorum of the
19 mittee or subcommittee members comprising one fourth or
20 committee or subcommittee consist of materials specified in
20 more of the total number of members of such committee or
21 paragraph (1), (2), (3), (4), or (5) of subsection (a)
21 subcommittee present and voting for or against such action.
22 of this section A separate vote of the committee or sub
22 Any such point of order shall be raised in the Senate within
23 committee shall be taken with respect to the transcript of
23 two calendar days after the vote against which the point
24 each such meeting The vote of each committee or subcom-
24 of order is raised, and such point of order shall be a
25 mittee member participating in each such vote shall be
25 matter of highest personal privilege. Each such point of
26 recorded and published and no proxies shall be allowed. In
9.
8
1
(c) Paragraph 7 (b) of Rule XXV of the Standing
1 order shall immediately be referred to a Select Committee
2 Rules of the Senate is repealed.
2 on Meetings consisting of the President pro tempore, the
3
(d) Title I of the table of contents of the Legislative
3 leader of the majority party, and the leader of the minority
4 Reorganization Act of 1946 is amended by inserting imme
4 party. The select committee shall examine the complete
5 diately below item 133B the following:
5 verbatim transcript of the meeting in question and shall rule
"133C. Open Senate committee meetings.".
6 whether the vote to close the meeting was in accordance
6
SEO 102. Clause 27 (f) (2) of Rule XI of the Rules of
7 with subsection (a) of this section, or whether the vote to
7 the House of Representatives is amended to read as follows:
8 delete a portion or portions from publicly available copies
8
(2) (A) Each meeting of each standing, select, or
9 of the meeting transcript was in accordance with subsection
9 special committee or subcommittee, including meetings to
10 (d) of this section, as the case may be. The select committee
10 conduct hearings, shall be open to the public: Provided, That
11 shall report to the Senate within five calendar days (ex
11 a portion or portions of such meetings may be closed to the
12 cluding days where the Senate is not in session) a resolu
12 public if the committee or subcommittee, as the case may be,
13 tion containing its findings. If the Senate adopts a resolution
13 determines by vote of a majority of a quorum of the com
14 finding that the committee vote in question was not in
14 mittee or subcommittee present that the matters to be dis
15 accordance with the relevant subsection, it shall direct that
15
cussed or the testimony to be taken at such portion or
16 there be made publicly available the entire transcript of
16 portions-
17 the meeting improperly closed to the public or the portion
17
(i) will disclose matters necessary to be kept
18 or portions of any meeting transcript improperly deleted
18
secret in the interests of national defense or the neces
19 from the publicly available copy, as the case may be.
19
sarily confidential conduct of the foreign policy of the
20
(f) The Select Committee on Meetings shall not be
20
United States;
21 subject to the provisions of subsection (a), (b), (c), or
21
(ii) will relate solely to matters of committee staff
22 (d) of this section."
22
personnel or internal staff management or administra
23
(b) Subsection (a) of subsection 242 of the Legislative
23
tion;
24 Reorganization Act of 1970 is repealed.
J.54-192-0-2
10
11
1
(iii) will tend to charge with crime or misconduct,
1
secrets or financial or commercial information portain-
2
or to disgrace any person, or will represent a clearly
2
ing specifically to a given person where
3
unwarranted invasion of the privacy of any individual:
3
(I) a Federal statute requires the information-
4
Provided, That this paragraph shall not apply to any
4
to be kept confidential by Government officers and
5
Government officer or employee with respect to his offi-
5
employees; or-
6.
cial duties or employment: And provided further, That
6
(II) the information has been obtained by the
7
as applied to a witness at a meeting, this paragraph shall
7
Federal Government on a confidential basis other
8
not apply unless the witness requests in writing that the
8
than through an application by such person for a
9
hearing be closed to the public;
9
specific Government financial or other benefit, and
10
(iv) will disclose information pertaining to any
10
the information must be kept secret in order to
11
investigation conducted for law enforcement purposes,
11
prevent grave and irreparable injury to the competi-
12
but only to the extent that the disclosure would (A)
12
tive position of such person.
13
interfere with enforcement proceedings, (B) deprive
13 A separate vote of the committee shall be taken with respect
14
a person of a right to a fair trial or an impartial adjudica-
14 to each committee or subcommittee meeting a portion or por-
15
tion, (C) disclose the identity of a confidential source
15 tions of which are proposed to be closed to the public pur
16
and, in the case of a record compiled by a criminal law
16 suant to this subsection. The vote of each committee member
17
enforcement authority in the course of a criminal investi
17 participating in each such vote shall be recorded and no
18
gation, or by an agency conducting a lawful national
18 proxies shall be allowed. Within one day of such vote, the
19
security intelligence investigation, confidential informa-
19 committee shall make publicly available a written copy of
20
tion furnished only by the confidential source, (D) dis-
20 such vote and, if a meeting or portion thereof is closed to
21
close investigative techniques and procedures, or (E)
21 the public, a full written explanation of its action.
22
endanger the life or physical safety of law enforcement
22
" (B) Each standing, select, or special committee or
23
personnel; or
23 subcommittee shall make public announcement of the date,
24
" (v) will disclose information relating to the trade
24 place, and subject matter of each meeting at least one week
12
13
1 before such meeting unless the committee or subcommittee
1 the majority of a quorum of the committee or subcom
2 determines by a vote of a majority of a quorum of the com-
2 mittee consist of material specified in subsection (i), (ii),
3 mittee or subcommittee present that committee business re-
3 (iii), (iv), or (v) of subparagraph (A) A separate vote
4 quires that such meeting be called at an earlier date, in which
4 of the committee or subcommittee shall be taken with respect
5 case the committee shall make public announcement of the
5 to the transcript of such meeting. The vote of each committee
6 date, place, and subject matter of such meeting at the earliest-
6 or subcommittee member participating in each such vote shall
7 practicable opportunity.
7 be recorded and published, and no proxies shall be allowed.
8
(C) A complete transcript shall be made of each meet-
8 In place of each portion deleted from copies of the transcript
9 ing of each standing, select, or special committee or subcom-
9 made available to the public, the committee or subcommittee
10 mittee (whether open or closed to the public) Except as
10 shall supply a full written explanation of why such por-
11 provided in paragraph (D), a copy of each such transcript
11 tion was deleted and a summary of the substance of the
'12 shall be made available for public inspection within seven
12 deleted portion that does not itself disclose information speci-
13 days of each such meeting, and additional copies of any tran-
13 fied in subsection (i), (ii), (iii), (iv), or (v) of subpara-
14 script shall be furnished to any person at the actual cost of
14 graph (A). The committee or subcommittee shall main
15 duplication. Notwithstanding the provisions of paragraph
15 tain a complete copy of the transcript of each meeting (in-
16 (D), in the case of meetings closed to the public, the portion
16 cluding those portions deleted from copies made available to
17 of such transcript made available for public inspection shall
17 the public), for a period of at least one year after such
18 include a list of all persons attending and their affiliation,
18 meeting, or until the Congress following the one in which
19 except for any portion of such list which would disclose
19 such meeting was held is assembled, whichever occurs later.
20 the identity of a confidential source, or endanger the
20
" (E) A point of order may be raised against any com-
21 life or physical safety of law enforcement personnel.
21 mittee or subcommittee vote to close a meeting to the public
22
" (D) In the case of meetings closed to the public pur-
22 pursuant to subparagraph (A), or against any committee or
23 suant to subparagraph (A), the committee or subcommittee-
23 subcommittee vote to delete from the publicly available copy
24 may delete from the copies of transcripts that are required
24 a portion of a meeting transcript pursuant to subparagraph
25 to be made available or furnished to the public pursuant to
25 (D), by committee or subcommittee members comprising
26 subparagraph (C), portions which it determines by vote of
14
15
1
one fourth or more of the total number of the members of
1
"OPEN JOINT AND CONFERENCE COMMITTEE MEETINGS
2 such committee or subcommittee present and voting for or
2
"SEC. 133D. (a) Each meeting of cach joint committee
3 against such action. Any such point of order must be raised
3 and each subcommittee thereof, and each committee of con-
4 before the entire House within two calendar days after the
4 ference shall be open to the public: Provided, That a por
5 vote against which the point of order is raised, and such point
5 tion or portions of such meetings may be closed to the public
6 of order shall be a matter of highest personal privilege. Each
6 if the committee determines by vote of a majority of a quo-
7 such point of order shall immediately be referred to a Select
7 rum of the committee or subcommittee present that the
8 Committee on Meetings consisting of the Speaker of the
8 matters to be discussed or the testimony to be taken at such
9 House of Representatives, the majority leader, and the mi-
9 portion or portions
10 nority leader. The select committee shall report to the House
10
" (1) will disclose matters necessary to be kept secret
11 within five calendar days (excluding days where the House
11
in the interests of national defense or the necessarily
12 is not in session) a resolution containing its findings. If the
12
confidential conduct of the foreign policy of the United
13 House adopts a resolution finding that the committee vote in
13
States;
14 question was not in accordance with the relevant subsection,
14
" (2) will relate solely to matters of committee staff
15 it shall direct that there be made publicly available the entire
15
personnel or internal staff management or administration;
16 transcript of the meeting improperly closed to the public or
16
" (3) will tend to charge with crime or misconduct,
17 the portion or portions of any meeting transcript improperly
17
or to disgrace any person, or will represent a clearly
18 deleted from the publicly available copy.
18
unwarranted invasion of the privacy of any individual:
19
" (F) The Select Committee on Meetings shall not be
19
Provided, That this paragraph shall not apply to any
20 subject to the provisions of subparagraph (A), (B), (C),
20
Government officer or employee with respect to his of
21 or (D) of this section."
21
ficial duties or employment: And provided further, That
22
SEC. 103. (a) JOINT AND CONFERENCE COMMIT-
22
as applied to a witness at a meeting, this paragraph shall
23 TEES. The Legislative Reorganization Act of 1946 is
23
not apply unless the witness requests in writing that the
24 amended by inserting after section 133C, as added by sec-
24
hearing be closed to the public;
25 tion 101 (3) of this Act, the following new section:
25
" (4) will disclose information pertaining to any
16
17
1
investigation conducted for law enforcement purposes,
1
vent grave and irreparable injury to the competitive
2
but only to the extent that the disclosure would (A) in-
2
position of such person.
3
terfere with enforcement proceedings, (B) deprive a
3 A separate vote of the committee shall be taken with respect
4
person of a right to a fair trial or an impartial adjudi-
4 to each committee or subcommittee meeting a portion or
5
cation, (C) disclose the identity of a confidential source
5 portions of which are proposed to be closed to the public
6
and, in the case of a record compiled by a criminal law
6 pursuant to this subsection. The vote of each committee
7
enforcement authority in the course of a criminal investi-
7 member participating in each such vote shall be recorded
8
gation, or by an agency conducting a lawful national
8 and no proxies shall be allowed. Within one day of such
9
security intelligence investigation, confidential informa-
9 vote, the committee shall make publicly available a written
10
tion furnished only by the confidential source, (D)
10 copy of such vote and, if a meeting or portion thereof is
11
disclose investigative techniques and procedures, or (E)
11 closed to the public, a full written explanation of its action.
12
endanger the life or physical safety of law enforcement
12
" (b) Each joint committee, subcommittee, and commit
13
personnel; or
13 tee of conference shall make public announcement of the
14
'(5) will disclose information relating to the trade
14 date, place, and subject matter of each meeting at least one
15
secrets or financial or commercial information pertaining
15 week before such meeting unless the committee or subcom
16
specifically to a given person where
16 mittee determines by a vote of a majority of a quorum of
17
" (A) a Federal statute requires the informa-
17 the committee or subcommittee present that committee busi
18
tion to be kept confidential by Government officers-
18 ness requires that such meeting be called at an earlier date,
19
and employees; or
19 in which case the committee shall make public announce
20
(B) the information has been obtained by the
20 ment of the date, place, and subject matter of such meeting
21
Federal Government on a confidential basis other
21 at the earliest practicable opportunity.
22
than through an application by such person for a
22
" (e) A complete transcript shall be made of each meet
23
specific Government financial or other benefit, and
23 ing of each joint committee, subcommittee, and committee
24
the information must be kept secret in order to pro
24 of conference (whether open or closed to the public). Ex
is.
J.54-192-0-3
18
19
1 cept as provided in subsection (d) of this section, a copy
1 made available to the public, the committee or subcommittee
2 of each such transcript shall be made available for public
2 shall supply a full written explanation of why such portion
3 inspection within seven days of each such meeting, and addi
3 was deleted, and a summary of the substance of the deleted
4 tional copies of any transcript shall be furnished to any per
4 portion that does not itself disclose information specified in
5 son at the actual cost of duplication. Notwithstanding the
5 paragraph (1), (2), (3), (1), or (5) of subsection (a) of
6 provisions of subsection (d) in the case of meetings closed
6 this section. The committee or subcommittee shall maintain
7 to the public, the portion of such transcript made available
7 a complete copy of the transcript of each meeting (including
8 for public inspection shall include a list of all persons
8 those portions deleted from copies made available to the pub-
9 attending and their affiliation, except for any portion of
9 lie), for a period of at least one year after such meeting, or
10 such list which would disclose the identity of a confidential
10 until the Congress following the one in which such meeting
11 source, or endanger the life or physical safety of law enforce-
11 was held is assembled, whichever occurs later.
12 ment personnel.
12
" (e) A point of order may be raised against any com
13
" (d) In the case of meetings closed to the public pur
13 mittee vote of a joint committee, subcommittee, or committee
14 suant to subsection (a) of this section, the joint committee,
14 of conference to close a meeting to the public pursuant to sub
15 subcommittee, or committee of conference may delete from
15 section (a) of this section, or any committee or subcommittee
16 the copies of transcripts that are required to be made avail
16 vote to delete from the publicly available copy a portion of a
17 able or furnished to the public pursuant to subsection (e) of
17 meeting transcript pursuant to subsection (d) of this section
18 this section, those portions which it determines by vote of the
18 by committee or subcommittee members comprising one
19 majority of a quorum of the committee or subcommittee con
19 fourth or more of the total number of the members of such
20 sist of materials specified in paragraph (1), (2), (3), (4),
20 committee or subcommittee present and voting for or against
21 or (5) of subsection (a) of this section. A separate vote of
21 such action. Any such point of order shall be raised in either
22 the committee or subcommittee shall be taken with respect to-
22 House within two calendar days after the vote against which
23 the transcript of such meeting. The vote of each committee or
23 the point of order is raised, and such point of order shall be
24 suboommittee member participating in each such vote shall
24 a matter of highest personal privilege. Each such point of
25 be recorded and published, and no proxies shall be allowed.
26 In place of each portion deleted from copies of the transcript-
21
20
1 ately below item 1330, as added by section 101 (c) of this
1 order shall immediately be referred to a Select Joint Com-
2 Act, the following:
2 mittee on Meetings consisting of the President pro tempore
"133D. Open joint and conference committee meetings.".
3 of the Senate, the Speaker of the House of Representatives,
3
SEC. 104. EXERCISE OF RULEMAKING POWERS. The
4 and the majority and minority leaders from each House The
4 provisions of this title are enacted by the Congress
5 select committee shall examine the complete verbatim tran-
5
(1) as an exercise of the rulemaking power of the
6 script of the meeting in question and shall rule whether the
6
Senate and the House of Representatives, respectively,
7 vote to close the meeting was in accordance with subsection
7
and as such they shall be considered as part of the rules
8 (a) of this section, or whether the vote to delete a portion or
8
of each House, respectively, or of that House to which
9 portions from publicly available copies of the meeting tran-
9
they specifically apply, and such rules shall supersede
10 script was in accordance with subsection (d) of this section,
10
other rules only to the extent that they are inconsistent
11 as the case may be The select committee shall report to both
11
therewith; and
12 Houses a concurrent resolution within five calendar days
12
(2) with full recognition of the constitutional right
13 (excluding days where either House is not in session) con-
13
of either House to change such rules (so far as relating
14 taining its findings. If both Houses adopt such a resolution
14
to such House) at any time, in the same manner, and to
15 finding that the committee vote in question was not in
15
the same extent as in the case of any other rule of such
16 accordance with the relevant subsection, they shall direct
16
House.
17 that there be made publicly available the entire transcript of
17
TITLE H AGENCY PROCEDURES
18 the meeting improperly closed to the public, or the portion
18
SEC. 201. (a) This section applies, according to the
19 or portions of any meeting transcript improperly deleted from
19 provisions thereof, to any agency, as defined in section 551
20 the publicly available copy, as the case may be.
20 (1) of title 5, United States Code, where the body compris-
21
(f) The Select Joint Committee on Meetings shall not
21 ing the agency consists of two or more members. Except as
22 be subject to the provisions of subsection (a), (b), (c), or
22 provided in subsection (b), all meetings (including meetings
23 (d) of this section."
23 to conduct hearings) of such agencies, or a subdivision there-
24
(b) Title I of the table of contents of the Legislative Re-
24 of authorized to take action on behalf of the agency, shall be
25 organization Act of 1946 is amended by inserting immedi-
22
23
1 open to the public. For purposes of this section, a meeting
1
as applied to a witness at a meeting this paragraph shall
2
consists of any procedure by which official agency business is
2
not apply unless the witness requests in writing that the
3
considered or discussed by at least the number of agency
3
meeting be closed to the public;
4 members (or of members of a subdivision of the agency au
4
(4) will disclose information pertaining to any in
5 thorized to take action on behalf of the agency), required to
5
vestigation conducted for law enforcement purposes, but
6 take action on behalf of the agency.
6
only to the extent that the disclosure would (A) inter
7
(b) Subsection (a) shall not apply to any portion or
7
fere with enforcement proceedings, (B) deprive a per
8 portions of an agency meeting where the agency determines
8
son of a right to a fair trial or an impartial adjudication,
9 by a vote of a majority of its entire membership, or, in the
9
(C) disclose the identity of a confidential source and, in
10
case of a subdivision thereof authorized to take action on
10
the case of a record compiled by a criminal law enforce
11 behalf of the agency, a majority of the membership of such
11
ment authority in the course of a criminal investigation,
12 subdivision, that such portion or portions of the meeting
12
or by an agency conducting a lawful national security
13
(1) will disclose matters necessary to be kept secret
13
intelligence investigation, confidential information fur
14
in the interests of national defense or the necessarily con-
14
nished only by the confidential source, (D) disclose
15
fidential conduct of the foreign policy of the United
15
investigative techniques and procedures, (E) endanger
16
States;
16
the life or physical safety of law enforcement personnel;
17
(2) will relate solely to individual agency person-
17
or (F) in the case of an agency authorized to regulate
18
nel or to internal agency office management and adminis-
18
the issuance or trading of securities, disclose informa
19
tration or financial auditing;
19
tion concerning such securities, or the markets in which
20
(3) will tend to charge with crime or misconduct,
20
they are traded, when such information must be kept
21
or to disgrace any person, or will represent a clearly
21
confidential in order to avoid premature speculation in
22
unwarranted invasion of the privacy of any individual:
22
the trading of such securities; or
23
Provided, That this paragraph shall not apply to any
23
(5) will disclose information relating to the trade
24
Government officer or employee with respect to his offi-
24
secrets or financial or commercial information pertain-
25
cial duties or employment: And provided further, That
25
ing specifically to a given person where
24
25
1
(A) a Federal statute requires the information
1
(c) Each agency shall make public announcement of
2
to be kept confidential by Government officers and
2 the date, place, and subject matter of each meeting, and
3
employees; OF
3 whether open or closed to the public, at least one week before
4
(B) the information has been obtained by the
4 each meeting. Such announcement shall be made unless the
5
Federal Government on a confidential basis other
5 agency determines by a vote of the majority of its members,
6
than through an application by such person for a
6 or in the case of a subdivision thereof authorized to take
7
specific Government financial or other benefit and
7 action on behalf of the agency, a majority of the members of
8
the information must be kept secret in order to pro-
8 the subdivision, that agency business requires that such meet
9
vent grave and irreparable injury to the competitive
9 ings be called at an earlier date, in which case the agency
10
position of such person;
10 shall make public announcement of the date, place, and sub-
11
(6) will relate to the conduct or disposition (but
11 ject matter of such meeting, and whether open or closed to
12
not the initiation) of a case of adjudication governed by
12 the public, at the earliest practicable opportunity.
13
the provisions of the first paragraph of section 554 (a)
13
(d) A complete transcript or electronic recording ad
14
of title 5, United States Code, or of subsection (1),
14 equate to fully record the proceedings shall be made of each
15
(2), (4), (5), or (6) thereof.
15 meeting of each agency (whether open or closed to the pub
16 A separate vote of the agency members, or the members of
16 lic) Except as provided in subsection (e) of this section a
17
a subdivision thereof authorized to take action on behalf of
17 copy of the transcript or electronic recording of each such
18 the agency, shall be taken with respect to each agency
18 meeting, together with any official minutes of such meeting,
19 meeting a portion or portions of which are proposed to
19 shall be made available to the public for inspection, and
20 be closed to the public pursuant to this subsection. The vote
20 additional copies of any such transcript, minutes, or record
21 of each agency member participating in such vote shall be
21 ing (or a copy of a transcription of the electronic recording)
22 recorded and no proxies shall be allowed. Within one day of
22 shall be furnished to any person at the actual cost of duplica
23 such vote, the agency shall make publicly available a written
23 tion or transcription. Notwithstanding the provisions of sub
24 copy of such vote and, if a meeting or portion thereof is closed
24 section (c), in the case of meetings closed to the public,
25 to the public, a full written explanation of its action.
25 the portion of such transcript made available for public.
26 inspection or electronic recording shall include a list
J. 54-192-0-4
26
27
1 of all persons attending and their affiliation, except for any
1 copies made available to the public), for a period of at least
2 portion of such list which would disclose the identity of a
2 two years after such meeting, or until one year after the con-
3 confidential source, or endanger the life or physical safety
3 clusion of any proceeding with respect to which the meeting,
4 of law enforcement personnel.
4 or a portion thereof, was hold, whichever occurs later.
5
(e) In the case of meetings closed to the public pursuant
5
(f) Each agency subject to the requirements of this see-
6 to subsection (b) of this section, the agency may delete from
6 tion shall, within three hundred and sixty days after the en
7 the copies of transcripts, electronic recordings, and minutes-
7 actment of this Act, following consultation with the Ad
8 made available or furnished to the public pursuant to subsec-
8 ministrative Conference of the United States and published
9 tion (d) of this section, those portions which the agency
9 notice in the Federal Register of at least thirty days and
10 determines by vote of a majority of its membership consist
10 opportunity for written comment by any persons, promulgate
11 of materials specified in paragraph (1), (2), (3), (4),
11 regulations to implement the requirements of subsections (a)
12 (5) or (6) of subsection (b) of this section. A separate
12 through (e) inclusive of this section. Such regulations must,
13 vote of the agency shall be taken with respect to each tran-
13 prior to final promulgation, receive the approval in writing
14 script, electronic recording, or minutes. The vote of each
14 of the Assistant Attorney General, office of Legal Counsel,
15 agency member participating in such vote shall be recorded
15 certifying that in his opinion the regulations are in accord-
16 and published, and no proxies shall be allowed. In place of
16 with the requirements of this section Any citizen or person
17 each portion deleted from copies of the meeting transcript,
17 resident in the United States may bring a proceeding in the
18 electronic recording, and minutes made available to the pub-
18 United States Court of Appeals for the District of Columbia
19 lie, the agency shall supply a full written explanation of why
19 Circuit-
20 such portion was deleted and a summary of the substance of
20
(1) to require an agency to promulgate such regu-
21 the deleted portion that does not itself disclose information
21
lations if such agency has not promulgated such regu-
22 specified in paragraph (1), (2), (3) (4), (5), or (6) of
22
lations within the time period specified herein; or
23 subsection (b) The agency shall maintain a complete ver-
23
(2) to set aside agency regulations issued pursu
24 batim copy of the transcript, or a complete electronic record-
24
ant to this subsection that are not in accord with the
25 ing of each meeting (including those portions deleted from
25
requirements of subsections (a) through (e) inclusive
28
29
1
of this section, and to require the promulgation of
1 any portion of a meeting transcript or electronic recording
2
regulations that are in accord with such subsections.
2 that was deleted from the publicly available copy and may
3
(g) The district courts of the United States shall have
3 take such additional evidence as it deems necessary. Among
4 jurisdiction to enforce the requirements of subsections (a)
4 other forms of equitable rolief, including the granting of an
5 through (e) inclusive of this section by declaratory judg
5 injunction against future violations of this section, the court
6 ment, injunctive relief, or otherwise. Such actions shall
6 may require that any portion of a meeting transcript or elee
7 be brought within sixty days after the meeting whose closing
7 tronic recording improperly deleted from the publicly avail
8 is challenged as a violation of this section: Provided, That if
8 able copy be made publicly available for inspection and copy
9 public notice of such meeting was net provided by the agency
9 ing, and, having due regard for orderly administration and
10 in accordance with the requirements of this section, such
10 the public interest, may set aside any agency action taken
11 action shall be brought within sixty days of such meeting
11 or discussed at an agency meeting improperly closed to the
12 or such public announcement, whichever is the later. Such
12 public. The jurisdiction of the district courts under this sub
13 actions shall be brought against an agency and its members
13 section shall be concurrent with that of any other court other-
14 by any citizen or person resident in the United States. Such
14 wise authorized by law to review agency action. Any such
15 actions may be brought in the district wherein the plaintiff
15 court may, at the application of any person otherwise prop
16 resides, or has his principal place of business, or where the
16 orly a party to a proceeding before such court to review an
17 agency in question has its headquarters. In such actions a
17 agency action, inquire into asserted violations by the agency
18 defendant shall serve his answer within twenty days after
18 of the requirements of this section and afford the relief au
19 the service of the complaint. The burden is on the agency to
19 thorized by this section in the case of proceedings by district
20 sustain its action Except as to causes the court considers
20 courts.
21 of greater importance, proceedings before the district court,
21
(h) In any action brought pursuant to subsection (f)
22 as authorized by this paragraph, take precedence on the
22 or (g) of this section, the reasonable costs of litigation (in
23 docket over all other causes and shall be assigned a hearing
23 cluding reasonable fees for attorneys and expert witnesses)
24 and trial at the earliest practicable date and expedited in
24 may be apportioned to the original parties or their successors
25 every way. In deciding such cases the court may examine-
25 in interest whenever the court determines such award is ap
30
31
1
propriate. In the case of apportionment of costs against an
1
agency before which the on-the-record proceeding is
2 agency or its members, the costs may be assessed by the
2
pending who communicates with an agency member or
3
court against the United States.
3
employee with respect to any such on the record agency
4
(i) The agencies subject to the requirements of this
4
proceeding.
5
section shall annually report to Congress regarding their
5
(3) 'On the record agency proceeding' means any
6
compliance with such requirements, including a tabulation
6
proceedings before any agency where the agency action,
7 of the total number of agency meetings open to the public,
7
or a portion thereof, is required by law to be determined
8
the total number of meetings closed to the public, the rea-
8
on the record after an opportunity for an agency hearing.
9
sons for closing such meetings, and a description of any
9
" (b) This section applies to any on the record agency
10 litigation brought against the agency under this section.
10
proceeding.
11
SEC. 202. Title 5 of the United States Code is amended
11
" (e) In any agency proceeding which is subject to sub
12 by adding after section 557 the following:
12 section (b) of this section
13
"Ex PARTE COMMUNICATIONS IN AGENCY PROCEEDING
13
(1) no interested person shall make or cause to be
14
"SEO. 557A (a) DEFINITIONS. For purposes of this
14
made to any member of the agency in question, adminis-
15 section
15
trative judge, or employee who is or may be involved in
16
(1) Ex parte communication' means a com
16
the decisional process of the proceeding any ex parte-
17
munication relevant to an on the record agency pro-
17
communication;
18
ceeding where such communication is not made on the
18
(2) no member of the agency in question, adminis-
19
record, or openly at a scheduled hearing session in such
19
trative judge, or employee who is or may be involved in
20
proceeding, and reasonable notice thereof is not given to
20
the decisional process of the proceeding shall make or
21
all parties to, or intervenors in, such proceedings.
21
cause to be made to an interested person any ex parte
22
" (2) 'Interested person' means any person (includ
22
communication;
23
ing a member or employee of any Government agency or
23
(3) a member of the agency in question, adminis-
24
authority) other than a member or employee of the
24
trative judge, or employee who is or may be involved
32
33
1
in the decisional process of the proceeding, who receives
1
(2) to any written communication from persons
2
a communication in violation of this subsection, shall
2
who are neither parties or intervenors to the proceeding,
3
place in the public record of the proceeding
3
nor government officials acting in their official capacity,
4
(A) any written material submitted in viola-
4
where such communications are promptly placed in the
5
tion of this subsection; and
5
public docket file of the proceedings
6
" (B) a memorandum stating the substance of
6
(e) The prohibitions of this section shall apply at
7
each oral communication submitted in violation of
7 such time as the agency shall designate, having due regard
8
this subsection; and
8 for the public interest in open decisionmaking by agencios,
9
(C) responses, if any, to the materials de-
9 but in no case shall they apply later than the time at which a
10
scribed in subparagraphs (A) and (B) of this
10 proceeding is noticed for hearing. If the person responsible
11
subsection;
11 for the communication has knowledge that the proceeding
12
(4) upon obtaining knowledge of a communica-
12 will be noticed, the prohibitions of this section shall apply at
13
tion in violation of this subsection prompted by or from
13 the time of his acquisition of such knowledge. In the case of
14
a party or intervenors to any proceeding to which this
14 any person who files with an agency any application, petition,
15
section applies, the agency members or member, the
15 or other form of request for agency action, the prohibitions
16
administrative judge, or employee presiding at the hear-
16 of this section shall apply, with respect to communications
17
ings may, to the extent consistent with the interests of
17 with such person, commencing at the time of such filing or
18
justice and the policy of the underlying statutes, require
18 at the time otherwise provided by this subsection, whichever
19
the party or intervenors to show cause why his claim
19 occurs first.
20
or interest in the proceeding should not be dismissed,
20
(f) Every agency notice of an opportunity for partici
21
denied, disregarded, or otherwise adversely affected by
21
pation by interested persons in a hearing shall contain a
22
virtue of such violation.
22 statement as follows:
23
(d) The prohibitions of this section shall not apply
23
" (1) if such notice relates to an on the record
24
" (1) to any proceeding to the extent required for
24
agency proceeding, it shall state that the proceeding is
25
the disposition of ex parte matters as authorized by law;
25
subject to the provisions of this section with respect
26
to ex parte communications;
34
35
1
" (2) if such notice relates to an agency proceeding
1
" (h) Nothing in this section shall be construed to per-
2
not on the record, it shall state that the proceeding is not
2 mit any communication which is prohibited by any other
3
subject to the provisions of this section with respect to
3 provision of law, or to prohibit any agency from adopting,
4
ex parto communications.
4 by rule or otherwise, prohibitions or regulations governing
5 If a notice of hearing with respect to any proceeding before
5 CX parte communications which are additional to, or more
6
an agency fails to comply with this section, the proceeding
6 stringent than, the requirements of this section.
7 shall be deemed to be an on the record agency proceeding for
7
" (i) The district courts of the United States shall have
8 purposes of ex parte communications.
8 jurisdiction to enforce the requirements of subsections (c)
9
" (g) Each agency subject to the requirements of this
9 and (e) of this section by declaratory judgment, injunctive
10 section shall, within three hundred and sixty days after the
10 relief, or otherwise. The action may be brought by any
11 enactment of this section, following consultation with the
11 citizen of or person resident in the United States The
12 Administrative Conference of the United States and pub
12 action shall be brought in the district wherein the plaintiff
13 lished notice in the Federal Register of at least thirty days
13 resides or has his principal place of business, or where the
14 and opportunity for written comment, promulgate regulations
14 agency in question has its headquarters. Where a person
15 to implement the requirements of this section. Any citizen or
15 other than an agency, agency member, administrative judge,
16 person resident in the United States may bring a proceeding
16 or employee is alleged to have participated in a violation of
17 in the United States Court of Appeals for the District of
17 the requirements of this section, such person may, but need
18 Columbia Circuit
18 not, be joined as a party defendant; for purposes of joining
19
" (1) to require any agency to promulgate regula-
19 such person as a party defendant, service may be had on
20
tions if the agency has not promulgated such regulations
20 such person in any district. Among other forms of equitable
21
within the time period specified; or
21 relief, the court may require that any 0X parte communica-
22
" (2) to set aside agency regulations issued pursuant
22 tion made or received in violation of the requirements of this
23
to this subsection that are not in accord with the require-
23 section be published, and, having due regard for orderly
24
ments of this section, and to require the promulgation
24 administration and the public interest, may set aside any
25
of regulations that are in accord with this section.
25 agency action taken in a proceeding where the violation
36
37
1 occurred. The jurisdiction of the district courts under this
1 It is the purpose of this Act to provide the public with such
2 subsection shall be concurrent with that of any other court
2 information, while protecting the rights of individuals and
3 otherwise authorized by law to review agency action. Any
3 the ability of the Government to carry out its responsibilities.
4 such court may, at the application of any person otherwise
4
SEC. 3. DEFINITIONS.-For purposes of this Act the
5 properly a party to a proceeding before such court to review
5 term, "person" includes an individual, partnership, cor-
6 an agency action, inquire into asserted violations by the
6 poration, association, or public or private organization other
7 agency of the requirements of this section, and afford the
7 than an agency.
8 relief authorized by this section in the case of proceedings
8
TITLE I-CONGRESSIONAL PROCEDURES
9 by district courts.
9
SEC. 101. SENATE COMMITTEE HEARING PRO-
10
"(j) In any action brought pursuant to subsection (g)
10 CEDURE.-(a) The Legislative Reorganization Act of 1946
11 and (i) of this section, cost of litigation (including reason-
11 is amended-
12 able fees for attorneys and expert witnesses) may be appor-
12
(1) by striking out the first sentence of section
13 tioned to the original parties or their successors in interest
13
133(b);
14 whenever the court determines such award is appropriate."
14
(2) by adding after section 133B the following:
15
SEC. 203. This title and the amendments made by this
15
"OPEN SENATE COMMITTEE MEETINGS
16 title do not authorize withholding of information or limit the
16
"SEC. 133C. Each meeting of a standing, select, or
17 availability of records to the public except as provided in this
17 special committee of the Senate, or any subcommittee thereof,
18 title. This title does not authorize any information to be
18 shall be open to the public, except that a portion or portions
19 withheld from Congress.
19 of any such meeting may be closed to the public if the commit-
20
SECTION 1. SHORT TITLE.-This Act may be cited as
20 tee or subcommittee, as the case may be, determines by record
21 the "Government in the Sunshine Act".
21 vote of a majority of the members of the committee or sub-
22
SEC. 2. DECLARATION OF POLICY.-It is hereby de-
22 committee present that the matters to be discussed or the
23 clared to be the policy of the United States that the public
23 testimony to be taken at such portion or portions-
24 is entitled to the fullest practicable information regarding
24
"(1) will disclose matters necessary to be kept secret
FORD
25 the decisionmaking processes of the Federal Government.
38
39
1
in the interests of national defense or the foreign policy
1
(b) Paragraph 7(b) of Rule XXV of the Standing
2
of the United States;
2 Rules of the Senate is repealed.
3
"(2) will relate solely to matters of committee staff
3
(c) Title I of the table of contents of the Legislative
4
personnel or internal staff management or procedure;
4 Reorganization Act of 1946 is amended by inserting imme-
5
"(3) will tend to charge an individual with crime or
5 diately below item 133B the following:
6
misconduct, to disgrace or injure the professional standing
"133C. Open Senate committee meetings.".
7
of an individual, or otherwise to expose an individual to
6
SEC. 102. Clause 2(g)(1) of Rule XI of the Rules of
8
public contempt or obloquy, or will represent a clearly
7 the House of Representatives is amended to read as follows:
9
unwarranted invasion of the privacy of an individual;
8
"(g) (1) Each meeting of a standing, select, or spe-
10
"(4) will disclose the identity of any informer or
9 cial committee or subcommittee, shall be open to the public,
11
law enforcement agent or will disclose any information
10 except that a portion or portions of any such meeting may be
12
relating to the investigation or prosecution of any viola-
11 closed to the public if the committee or subcommittee, as the
13
tion of law that is required to be kept secret in the
12 case may be, determines by record vote of a majority of the
14
interests of effective law enforcement; or
13 members of the committee or subcommittee present that the
15
"(5) will disclose information relating to the trade
14 matters to be discussed or the testimony to be taken at such
16
secrets or financial or commercial information pertaining
15 portion or portions-
17
specifically to a given person if-
16
"(A) will disclose matters necessary to be kept
"(A) an Act of Congress requires the informa-
17
18
secret in the interests of national defense or the foreign
tion to be kept confidential by Government officers
18
19
policy of the United States;
19
20
and employees; or
"(B) will relate solely to matters of committee staff
21
"(B) the information has been obtained by the
20
personnel or internal staff management or procedure;
Government on a confidential basis, and is required
21
22
"(C) will tend to charge an individual with crime
22
23
to be kept secret in order to prevent undue injury to
or misconduct, to disgrace or injure the professional
23
24
the competitive position of such person.".
standing of an individual, or otherwise to expose an in-
24
25
This section shall not apply to meetings to conduct hearings.
dividual to public contempt or obloquy, or will represent
40
41
1
a clearly unwarranted invasion of the privacy of an in-
1
"OPEN CONFERENCE COMMITTEE MEETINGS
2
dividual;
2
"SEC. 133D. Each conference committee between the
3
"(D) will disclose the identity of any informer or
3 Senate and the House of Representatives shall be open to
4
law enforcement agent or will disclose any information
4 the public except when the managers of either the Senate
5
relating to the investigation or prosecution of any viola-
5 or the House of Representatives in open session determine
6
tion of law that is required to be kept secret in the inter-
6 by a rollcall vote of a majority of those managers present,
7
ests of effective law enforcement; or
7 that all or part of the remainder of the meeting on the day
8
"(E) will disclose information relating to the trade
8 of the vote shall be closed to the public.".
9
secrets or financial or commercial information pertaining
9
(b) Title I of the table of contents of the Legislative Re-
10
specifically to a given person if-
10 organization Act of 1946 is amended by inserting immedi-
11
"(i) an Act of Congress requires the informa-
11 ately below item 133C, as added by section 101(c) of this
12
tion to be kept confidential by Government officers
12 Act, the following:
13
and employees; or
"133D. Open conference committee meetings.".
14
"(ii) the information has been obtained by the
13
SEC. 104. EXERCISE OF RULEMAKING Powers.-The
15
Government on a confidential basis, and is re-
14 provisions of this title are enacted by the Congress-
16
quired to be kept secret in order to prevent undue
15
(1) as an exercise of the rulemaking power of the
17
injury to the competitive position of such person.".
16
Senate and the House of Representatives, respectively,
18
This clause shall not apply to meetings to conduct
17
and as such they shall be considered as part of the rules
19
hearings.
18
of each House, respectively, or of that House to which
20
SEC. 102. (a) CONFERENCE COMMITTEES.-The Leg-
19
they specifically apply, and such rules shall supersede
21
islative Reorganization Act of 1946 is amended by inserting
20
other rules only to the extent that they are inconsistent
22 after section 133C, as added by section 101(3) of this Act,
21
therewith; and
23
the following new section:
22
(2) with full recognition of the constitutional right
42
43
1
of either House to change such rules (so far as relating
1 or portions of a meeting of a subdivision thereof authorized
2
to such House) at any time, in the same manner, and to
2 to take action on behalf of the agency, and (2), subsections
3
the same extent as in the case of any other rule of such
3 (c) and (d) shall not apply to any information pertaining
4
House.
4 to such meeting otherwise required by this section to be dis-
5
TITLE II-AGENCY PROCEDURES
5 closed to the public, where the agency, or the subdivision
6
SEC. 201. (a) This section applies, according to the
6 thereof conducting the meeting, properly determines that such
7 provisions thereof, to the Federal Elections Commission and
7 portion or portions of its meeting, or such information-
8 to any agency, as defined in section 551(1) of title 5, United
8
(1) will disclose matters (A) specifically authorized
9 States Code, where the body comprising the agency consists of
9
under criteria established by an Executive order to be
10 two or more individual members, at least a majority of whom
10
kept secret in the interests of national defense or foreign
11 are appointed to such position by the President with the
11
policy and (B) are in fact properly classified pursuant
12 advice and consent of the Senate. Except as provided in
12
to such Executive order;
13 subsection (b), all meetings of such agencies, or a subdivision
13
(2) will relate solely to the agency's own internal
14 thereof authorized to take action on behalf of the agency, shall
14
personnel rules and practices;
15 be open to the public. For purposes of this section, a meeting
15
(3) will disclose information of a personal nature
16 means a gathering, electronically or in person, of at least
16
where disclosure would constitute a clearly unwarranted
17 the number of agency members required to take action on
17
invasion of personal privacy;
18 behalf of the agency where such gathering results in the
18
(4) will involve accusing any person of a crime, or
19 joint consideration or disposition of official agency business.
19
formally censuring any person;
20 Informal discussions between only two members of an agency
20
(5) will disclose information contained in investi-
21 which do not result in the disposition of official agency busi-
21
gatory records compiled for law enforcement purposes,
22 ness shall not constitute a meeting for purposes of this section.
22
but only to the extent that the disclosure would (A)
23
(b) Except where the agency finds that the public in-
23
interfere with enforcement proceedings, (B) deprive
24 terest requires otherwise, (1) subsection (a) shall not apply to
24
a person of a right to a fair trial or an impartial
25 any portion or portions of an agency meeting, or any portion
25
adjudication, (C) constitute an unwarranted invasion
44
45
1
of personal privacy, (D) disclose the identity of a con-
1
seriously frustrate implementation of the proposed
2
fidential source, (E) in the case of a record compiled
2
agency action, or private action contingent thereon.
3
by a criminal law enforcement authority in the course
3
This paragraph shall not apply in any instance where
4
of a criminal investigation, or by an agency conducting
4
the agency has already disclosed to the public the general
5
a lawful national security intelligence investigation, dis-
5
content or nature of its proposed action, or where the
6
close confidential information furnished only by the confi-
6
agency is required by law to make such disclosure prior
7
dential source, (F) disclose investigative techniques and
7
to taking final agency action on such proposal;
8
procedures, or (G) endanger the life or physical safety
8
(8) will disclose information contained in or related
9
of law enforcement personnel;
9
to examination, operating, or condition reports prepared
10
(6) will disclose trade secrets, or financial or com-
10
by, on behalf of, or for the use of an agency responsible
11
mercial information obtained from any person, or an-
11
for the regulation or supervision of financial institutions;
12
other agency, where such information must be kept secret
12
(9) will specifically concern the agency's partici-
13
in order to prevent substantial injury to the competitive
13
pation in a civil action pending in Federal or State
14
position of the person to whom such information relates;
14
court, or the initiation, conduct, or disposition by the
15
(7) will disclose information which must be kept
15
agency of a particular case of formal agency adjudica-
16
confidential in order to avoid premature public dis-
16
tion pursuant to the procedures in section 554 of title 5,
17
closure of a proposed action by-
17
United States Code, including any case of adjudication
18
(A) an agency which regulates currencies,
18
that would otherwise be excluded from such section by
19
securities, commodities, or financial institutions
19
reason of the exceptions contained in subsection (a) of
20
where such disclosure would (i) lead to serious
20
section 554; or
21
financial speculation in currencies, securities, or
21
(10) will disclose information required to be kept
22
commodities, or (ii) seriously endanger the stability
22
confidential by any other statute establishing particular
23
of any financial institution; or
23
criteria or referring to particular types of information.
24
(B) any agency where such disclosure would
24
(c) (1) Action under subsection (b) shall be taken only
46
47
1 when a majority of the entire membership of the agency, or
1 public, the agency shall, within one day of the vote taken
2 of the subdivision thereof authorized to conduct the meeting
2 pursuant to paragraph (1) of this subsection, make publicly
3 on behalf of the agency, votes to take such action. A separate
3 available a full written explanation of its action closing the
4 vote of the agency members, or the members of a subdivision
4 meeting, or portion thereof, together with a list of all persons
5 thereof, shall be taken with respect to each agency meeting a
5 expected to attend the meeting, and their affiliation. The re-
6 portion or portions of which are proposed to be closed to the
6 quirements of this paragraph shall not apply to action closing
7 public pursuant to subsection (b), or with respect to any
7 a preliminary meeting described in paragraph (2) of sub-
8 information which is proposed to be withheld. under subsec-
8 section (d).
9 tion (b). A single vote may be taken with respect to a series
9
(3) Any agency, a majority of whose meetings will
10 of meetings, a portion or portions of which are proposed to
10 properly be closed to the public, in whole or in part, pursuant
11 be closed to the public, or with respect to any information
11 to paragraph (6), (7) (A), or (8) of subsection (b), may
12 concerning such series of meetings, so long as each meeting in
12 provide by regulation for the closing of such meetings, or
13 such series involves the same particular matters, and is
13 portion of such meetings, so long as a majority of the mem-
14 scheduled to be held no more than thirty days after the initial
14 bers of the agency vote at the beginning of such meeting, or
15 meeting in such series. The vote of each agency member par-
15 portion thereof, to close the meeting, and a copy of such vote
16 ticipating in such vote shall be recorded and no proxies shall
16 is made available to the public. The provisions of this sub-
17 be allowed. Whenever any person whose interests may be
17 section, and subsection (d), shall not apply to any meeting
18 directly affected by a meeting requests that the agency close
18 to which such regulations apply, except that the agency shall
19 a portion or portions of the meeting to the public for any of
19 provide the public with public announcement of the date,
20 the reasons referred to in paragraph (3) or (4) of sub-
20 place, and subject matter of the meeting at the earliest prac-
21 section (b), the agency shall vote whether to close such meet-
21 ticable opportunity.
22 ing, upon request of any one of its members. Within one day
22
(d) (1) In the case of each meeting, except a meeting
23 of any vote taken pursuant to this paragraph, the agency
23 described by paragraph (2) of this subsection, the agency
24 shall make publicly available a written copy of such vote.
24 shall make public announcement, at least one week before
25
(2) If a meeting or portion thereof is closed to the
25 the meeting, of the date, place, and subject matter of each
48
49
1 meeting, whether open or closed to the public, and the name
1 should be open or closed to the public, the public announcement
2 and phone number of the official designated by the agency to
2 of the date, place, and subject matter of such preliminary
3 respond to requests for information about the meeting. Such
3 meeting, and whether open or closed to the public, shall be
4 announcement shall be made unless a majority of the mem-
4 made at the earliest practicable opportunity.
5 bers of the agency, or of the members of the subdivision
5
(e) A complete transcript or electronic recording ade-
6 thereof conducting the meeting, determines by a vote that
6 quate to fully record the proceedings shall be made of each
7 agency business requires that such meetings be called at an
7 meeting, or portion of a meeting, closed to the public, ex-
8 earlier date, in which case the agency shall make public
8 cept for a meeting, or portion of a meeting, closed to the
9 announcement of the date, place, and subject matter of such
9 public pursuant to paragraph (9) of subsection (b). The
10 meeting, and whether open or closed to the public, at the
10 agency shall make promptly available to the public the com-
11 earliest practicable opportunity. The subject matter of a
11 plete transcript or electronic recording of the discussion at
12 meeting may be changed following the public announcement
12 such meeting of any item on the agenda, or of the testimony
13 required by this paragraph if (A) a majority of the entire
13 of any witness received at such meeting, where such discus-
14 membership of the agency, or of the subdivision thereof con-
14 sion or testimony does not contain any information specified
15 ducting the meeting, determines by a vote that agency busi-
15 in paragraphs (1) through (10) of subsection (b). Copies
16 ness so requires, and that no earlier announcement of the
16 of such transcript, or a complete transcription of such elec-
17 change was possible, and (B) the agency publicly announces
17 tronic recording disclosing the identity of each speaker, shall
18 such change at the earliest practicable opportunity. Imme-
18 be furnished to any person at the actual cost of duplication
19 diately following the public announcement required by this
19 or transcription. The agency shall maintain a complete ver-
20 paragraph, notice of such announcement shall also be sub-
20 batim copy of the transcript, or a complete electronic record-
21 mitted for publication in the Federal Register unless publi-
21 ing of each meeting, or portion of a meeting, closed to the
22 cation of such notice prior to the meeting is not practicable.
22 public, for a period of at least two years after such meeting,
23
(2) In the case of a preliminary meeting concerned
23 or until one year after the conclusion of any agency pro-
24 solely with determining the date, place, and subject matter of
24 ceeding with respect to which the meeting, or a portion thereof,
25 a subsequent meeting, and whether such subsequent meeting
25 was held, whichever occurs later.
50
51
1
(f) Each agency subject to the requirements of this sec-
1 nouncement of such meeting is not initially provided by the
2 tion shall, within one hundred and eighty days after the en-
2 agency in accordance with the requirements of this section,
3 actment of this Act, following consultation with the Office of
3 such action may be instituted pursuant to this section at any
4 the Chairman of the Administrative Conference of the United
4 time prior to sixty days after any public announcement of
5 States and published notice in the Federal Register of at least
5 such meeting. Before bringing such action, the plaintiff
6 thirty days and opportunity for written comment by any
6 shall first notify the agency of his intent to do so, and allow
7 persons, promulgate regulations to implement the require-
7 the agency a reasonable period of time, not to exceed ten
8 ments of subsections (a) through (e) of this section. Any
8 days, to correct any asserted violation of this section, except
9 person may bring a proceeding in the United States Dis-
9 that such reasonable period of time shall not be held to exceed
10 trict Court for the District of Columbia to require an agency
10 two working days where notification of such asserted violation
11 to promulgate such regulations if such agency has not pro-
11 is made prior to a meeting which the agency has voted to
12 mulgated such regulations within the time period specified
12 close. Such actions may be brought in the district wherein the
13 herein. Any person may bring a proceeding in the United
13 plaintiff resides, or has his principal place of business, or
14 States Court of Appeals for the District of Columbia to set
14
where the agency in question has its headquarters. In such
15 aside agency regulations issued pursuant to this subsection
15 actions a defendant shall serve his answer within twenty days
16 that are not in accord with the requirements of subsections (a)
16 after the service of the complaint. The burden is on the
17 through (e) of this section, and to require the promulga-
17 defendant to sustain his action. In deciding such cases the
18 tion of regulations that are in accord with such subsections.
18 court may examine any portion of a transcript or electronic
19
(g) The district courts of the United States have juris-
19 recording of a meeting closed to the public, and may take such
20 diction to enforce the requirements of subsections (a) through
20 additional evidence as it deems necessary. The court, having
21 (e) of this section by declaratory judgment, injunctive relief,
21 due regard for orderly administration and the public interest,
22 or other relief as may be appropriate. Such actions may be
22 as well as the interests of the party, may grant such equitable
23 brought by any person against an agency or its members
23 relief as it deems appropriate, including granting an injunc-
24 prior to, or within sixty days after, the meeting out of which
24 tion against future violations of this section, or ordering the
25 the violation of this section arises, except that if public an-
25 agency to make available to the public the transcript or elec-
52
53
1 tronic recording of any portion of a meeting improperly
1 the total number of meetings closed to the public, the rea-
2 closed to the public. Except to the extent provided in subsec-
2 sons for closing such meetings, and a description of any
3 tion (h) of this section, nothing in this section confers jurisdic-
3 litigation brought against the agency under this section.
4 tion on any district court to set aside or invalidate any agency
4
SEC. 202. (a) Section 557 of title 5, United States
5 action taken or discussed at an agency meeting improperly
5 Code, is amended by adding at the end thereof the following
6 closed to the public in violation of this section.
6 new subsection:
7
(h) Any Federal court otherwise authorized by law to
7
"(d) In any agency proceeding which is subject to sub-
8 review agency action may, at the application of any person
8 section (a) of this section, except to the extent required for
9 properly participating in the proceeding pursuant to other
9 the disposition of ex parte matters as authorized by law-
10 applicable law, inquire into asserted violations by the agency
10
"(1) no interested person shall make or cause to be
11 of the requirements of this section, and afford any such relief
11
made to any member of the body comprising the agency,
12 as it deems appropriate.
12
administrative law judge, or other employee who is or
13
(i) In any action brought pursuant to subsection (f),
13
may be involved in the decisional process of the proceed-
14 (g), or (h) of this section, the reasonable costs of litigation
14
ing, an ex parte communication relevant to the merits of
15 (including reasonable fees for attorneys and expert witnesses)
15
the proceeding;
16 may be awarded or apportioned among any of the original
16
"(2) no member of the body comprising the agency,
17 parties, or their successors in interest, whenever the court
17
administrative law judge, or other employee who is or
18 determines such award is appropriate. In the case of appor-
18
may be involved in the decisional process of the proceed-
19 tionment of costs against an agency or its members, the costs
19
ing, shall make or cause to be made to an interested per-
20 may be assessed by the court against the United States.
20
son an ex parte communication relevant to the merits of
21
(j) The agencies subject to the requirements of this
21
the proceeding;
22 section shall annually report to Congress regarding their
22
"(3) a member of the body comprising the agency,
23 compliance with such requirements, including a tabulation
23
administrative law judge, or other employee who is or
24 of the total number of agency meetings open to the public,
24
may be involved in the decisional process of said proceed-
54
55
1
ing who receives, or who makes, a communication in
1
in which case the prohibitions shall apply at the time of
2
violation of this subsection, shall place on the public rec-
2
his acquisition of such knowledge.".
3
ord of the proceeding:
3
(b) The second sentence of section 554(d) of title 5,
4
"(A) written communications transmitted in
4 United States Code, is amended to read as follows: "Such
5
violation of this subsection;
5 employee may not be responsible to or subject to the super-
6
"(B) memorandums stating the substance of all
6 vision or direction of an employee or agent engaged in the
7
oral communications occurring in violation of this
7 performance of investigative or prosecuting functions for an
8
subsection; and
8 agency.".
9
"(C) responses to the materials described in sub-
9
(c) Section 551 of title 5, United States Code, is
10
paragraphs (A) and (B) of this subsection;
10
amended-
11
"(4) upon receipt of a communication in violation
11
(1) by striking out "and" at the end of paragraph
12
of this subsection from a party, or which was caused to be
12
(12);
13
made by a party, the agency, administrative law judge, or
13
(2) by striking out the "Act" at the end of para-
14
other employee presiding at the hearing may to the extent
14
graph (13) and inserting in lieu thereof "Act; and"
15
consistent with the interests of justice and the policy of the
15
(3) by adding at the end thereof the following new
16
underlying statutes, require the person or party to show
16
paragraph:
17
cause why his claim or interest in the proceeding should
17
"(14) 'ex parte communication' means an oral or
18
not be dismissed, denied, disregarded, or otherwise ad-
18
written communication not on the record with respect
19
versely affected by virtue of such violation;
19
to which reasonable prior notice to all parties is not
20
"(5) the prohibitions of this subsection shall apply
20
given.".
21
at such time as the agency may designate, but in no case
21
(d) Section 556(d) of title 5, United States Code, is
22
shall they apply later than the time at which a proceeding
22
amended by inserting between the third and fourth sentences
23
is noticed for hearing unless the person responsible for
23 thereof the following new sentence: "The agency may, to the
24
the communication has knowledge that it will be noticed,
24 extent consistent with the interests of justice and the policy
25 of the underlying statutes administered by the agency, con-
56
1
sider a violation of section 557(d) of this title sufficient
2
grounds for a decision adverse to a party who has committed
3
such violation or caused such violation to occur.".
4
SEC. 203. Except as specifically provided by section 201,
5
nothing in this title confers any additional rights on any per-
6
son, or limits the present rights of any such person, to inspect
7 or copy, under section 552 of title 5, United States Code, any
8 documents or other written material within the possession of
9 any agency. This title does not authorize any information to be
10 withheld from Congress.
11
SEC. 204. The provisions of this title shall become ef-
12 fective one hundred and eighty days after the date on which
13 this Act is enacted, except that the provisions of section 201
14
requiring the issuance of regulations to implement such sec-
15 tion shall become effective upon enactment.
GESRLO FORD
[COMMITTEE PRINT NO. 3]
JUNE 18, 1975
Calendar No.
94TH CONGRESS
1ST SESSION
S.5
[Report No. 94-
]
A BILL
To provide that meetings of Government agencies and
of congressional committees shall be open to the
public, and for other purposes.
By Mr. CHILES, Mr. ABOUREZK, Mr. BAYH, Mr. BEALL,
Mr. BIDEN, Mr. BROCK, Mr. BROOKE, Mr. CASE, Mr.
CHURCH, Mr. CLARK, Mr. CRANSTON, Mr. GRAVEL,
Mr. GARY W. HART, Mr. PHILIP A. HART, Mr. HAS-
KELL, Mr. HATFIELD, Mr. HATHAWAY, Mr. HELMS,
Mr. HOLLINGS, Mr. HUMPHREY, Mr. LEAHY, Mr.
McGovern, Mr. MATHIAS, Mr. METCALF, Mr. MON-
DALE, Mr. NELSON, Mr. PACKWOOD, Mr. PERCY, Mr.
PROXMIRE, Mr. RIBICOFF, Mr. ROTH, Mr. STAFFORD,
Mr. STONE, Mr. SYMINGTON, Mr. TUNNEY, and Mr.
WEICKER
JANUARY 15, 1975
Read twice and referred to the Committee on
Government Operations
JUNE
, 1975
Reported with an amendment
only
THE WHITE HOUSE
WASHINGTON
July 25, 1975
MEMORANDUM FOR:
THE STAFF SECRETARY
THROUGH:
PHIL BUCHEN P.W.B.
FROM:
BILL CASSELMAN
W.
SUBJECT:
"Pennsylvania Avenue Development Corporation
James Lynn Memo of July 23, 1975"
We have reviewed the attached memorandum and believe that there are
two additional alternatives which the President should consider--one of
which we would strongly recommend.
Both alternatives stem from the need to resolve the status of certain
properties along the Avenue whose future has long been in doubt because
of a statutory moratorim on construction, improvement, or demolition,
not in conformance with the Plan. The properties in question include
the Willard Hotel, Kann's, Lansburgh's and a parcel of land owned by
the Penn Market Corporation. The owners of the Willard are already
in court challenging the moratorium. Another year's delay will probably
result in litigation by Penn Market and possibly Kann's and Lansburgh's.
In order to avert this problem, two additional alternatives should be
put before the President. The first alternative ("2b") would be to
endorse implementation of the Plan now and also submit legislation
seeking borrowing authority for this fiscal year; the budget request,
however, still would be made part of the FY 77 program.
By seeking authorizing legislation now, we would shorten the authorization-
appropriation cycle. Hopefully, this would have the effect of staying the
hand of owners who are concerned about a long-term cloud over their
properties and are considering litigation. The Corporation is currently
of the view that it will prevail in the Willard suit, but it realizes that
courts do not have an infinite amount of patience with moratoria affecting
the rights of property owners. The Corporation may not prevail in future
suits. Therefore, we recommend this additional alternative as having
all of the "pros and cons" of alternative 2a, plus the added benefit of
FORD
possibly averting threatened litigation.
THE
GENALD
2
A. second alternative ("2c") would be to seek an appropriation for
funding the existing $50 million borrowing authority to permit the
purchase of the above-described properties this year. It is estimated
that the cost of such acquisitions would be less than $20 million. This
alternative would also require endorsement of the Plan and the sub-
mission of legislation and a budget request as part of the FY 77 program.
As such, alternative 2c would have the same general "pros" as 2a, but
would require an expenditure of funds during FY 76. There would be no
doubt, however, that this alternative would permit the Corporation to
remove the cloud over major private properties and prevent the future
deterioration of the area. Any potential litigation would thereby be
thwarted.
Incidentially, we disagree with the first "con" in Alternative 2 that the
Corporation staff would be "without significant functions in 1976. "
Assuming the Congress provides FY 76 salaries and expenses for the
staff, there would be sufficient work to keep the Corporation active
during the interim. Property appraisals, zoning changes, working
drawings for landscaping and reconstructing the Avenue, street
closings, gathering of development data, etc., still remain to be done.
As a final observation, we advise that the Administration communicate
its views on the Plan immediately to the Senate and House Interior
Committees. House Interior Subcommittee No. 1, chaired by Roy
Taylor, has been holding hearings on the Plan and is anxiously awaiting
an indication of an Administration position with respect to its implemen-
tation. Silence will not be taken as an assent by Taylor, who has been
pressing Corporation witnesses for an indication of White House support
for the Plan.
FORD
GENALD
THE WHITE HOUSE
WASHINGTON
July 24, 1975
MEMORANDUM FOR:
THE STAFF SECRETARY
THROUGH:
PHIL BUCHEN
FROM:
BILL CASSELMAN
NR.
SUBJECT:
Pennsylvania Avenue Development Corporation
James Lynn Memo of July 23, 1975
We generally concur in the attached memorandum.
However, it should be noted that selection of the recommended option
would probably require the Corporation to exercise its borrowing
authority as soon as such authority is enacted and funded. This action
would be necessary in order to acquire certain properties along the
Avenue whose future has long been in doubt as a result of a statutory
moratorium on construction, improvement, or demolition. The
properties in question include the Willard Hotel, Kann's, and a parcel
of land owned by the Penn Market Corporation. The owners of the
Willard are already in court challenging the moratorium. Another
year's delay will probably result in litigation by Penn Market and
possibly Kann's.
In order to avert this problem, it might be more advisable to seek the
$200 million in borrowing authority from the Congress now, with the
understanding that an appropriation would not be sought until 1977. This
would hasten the authorization-appropriation cycle and probably allow the
Corporation to stay the land of owners who are concerned about a long-
term cloud over their properties. In the alternative, an appropriation
could be sought under the existing $50 million borrowing authority to
allow the purchase of certain properties this year. It is estimated that
the cost of such acquisitions would be less than $10 million.
FORD
BERALD
2
Assuming the Congress provides the FY 76 salaries and expenses for
the Corporation staff, there should be sufficient work to keep the
Corporation active during the interim. Property appraisals, zoning
changes, working drawings for landscaping and reconstructing the
Avenue, street closings, gathering of development data, etc., still
remain to be done.
As a final observation, we would advise that the Administration communi-
cate its views on the Plan immediately to the Senate and House Interior
Committees. House Interior Subcommittee No. 1, chaired by Roy Taylor,
has been holding hearings on the Plan and is anxiously awaiting an indica-
tion of an Administration position with respect to implementation of the
Plan. Silence will not be taken as an assent by Taylor who has rightly
been badgering Corporation witnesses for an indication of White House
support for the Plan.
Enclosure
THE WHITE HOUSE
ACTION MEMORANDUM
WASHINGTON
LOG NO.:
Date:
July 23, 1975
Time:
FOR ACTION: Phil Buchen
CC (for information):
Ji m Cannon
Max Friedersdorf
Jack Marsh
FROM THE STAFF SECRETARY
DUE: Date:
Friday, July 25
Time: 10 A.M.
SUBJECT:
Pennsylvania Avenue Development Corporation
James Lynn memo of July 23, 1975
ACTION REQUESTED:
For Necessary Action
x For Your Recommendations
Prepare Agenda and Brief
Draft Reply
X For Your Comments
Draft Remarks
REMARKS:
FORD is LIBRARY 076330
PLEASE ATTACH THIS COPY TO MATERIAL SUBMITTED.
If you have any questions or if you anticipate a
delay in submitting the required material, please
Jim Connor
telephone the Staff Secretary immediately.
For the President
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
ACTION
JUL 23 1975
MEMORANDUM FOR THE PRESIDENT
FROM:
JAMES T. LYNN
SUBJECT:
Pennsylvania Avenue Development Corporation
The purpose of this memorandum is to seek your guidance
on whether the Administration should submit legislation
to authorize funding to implement the Pennsylvania
Avenue Development Plan.
Background
On November 19, 1974, the Pennsylvania Avenue Develop-
ment Corporation in accordance with law transmitted the
plan to the Congress. If, during the 60 day legislative
review period neither House passed a resolution rejecting
the plan, then execution could begin.
During the budget review process for FY 1976, the
Corporation requested resources for plan implementation
as well as salaries and expenses. At that time, you
decided to request only salaries and expenses for the
Corporation in 1976 and defer the decision on authori-
zation of resources for plan implementation until the
60 legislative days of congressional review had expired.
The 60 legislative days have now run and no adverse
congressional resolution was passed. Under the terms
of the Act, no construction or structural improvement
in the area may take place unless in conformity with
the plan, thereby placing a cloud over all property
within the development area.
Discussion
The authorization request for plan implementation con-
FORD
sists of a $130M Federal appropriation for the "public
improvements" included in the plan, and two loan
GERALD
requests totalling $200M to assist in the development
of the project. The Corporation requests that the
2
Budget Authority for the $130M Federal appropriation and
the $200M loan be made available immediately, though the
outlays would occur over the approximately 14-year life
span of the Corporation's development of the project.
The rationale for this form of financing is that appro-
priation of the full Federal share would be a catalyst
for private investment in the project. Presently, it
appears that there is little likelihood of significant
private investment, given the area's deteriorated sur-
roundings. The Corporation's staff strongly argues that
the front-end authority is needed to provide adequate
assurance that the $250M private investment called for
by the plan can be realized.
The $130M appropriation (first year outlays- $8.8M) would
be used to pay for public costs not normally borne by
private developers. These costs include public works,
relocation assistance, site improvements, historic pre-
servation and renovation, and costs for changes in land
use, e.g., the downzoning of one site from commercial to
residential.
The $200M in borrowing authority is to be used to finance
land acquisitions. These costs would be recovered from
either ground sales or ground leases. It is anticipated
that $50M of the $200M in borrowing authority would be used
in a construction revolving fund to finance all mortgageable
expenses involved in building costs (construction, taxes,
interest, insurance, etc.). These costs would be recovered
at mortgage closings and the use of revolving funds should
allow savings in time and cost.
Alternatives
Alternative #1.
Submit legislation providing the resources
necessary to begin plan implementation.
Alternative #2.
Submit no legislation at this time but
submit both legislation and a budget
request in January 1976 as part of the
1977 budget submission.
Alternative 2a.
Endorse implementation of plan now but
submit legislation and budget request as
part of the 1977 budget.
3
Alternative #3. Submit legislation to repeal the plan
and further Federal involvement in the
development of Pennsylvania Avenue.
Pros and Cons
Alternative #1.
(Provide resources for implementation)
Pro
-- Would provide for immediate actions to improve
the Pennsylvania Avenue area based upon a de-
tailed agreed upon plan.
- Would remove all clouds over property in the
area.
--- Would carry out previous Administration commit-
ments and sponsorship of the program.
-- Follows-up on presumed intent of Congress to
implement the plan.
Con
-- Would provide substantial Federal resources in
a limited political and geographical area.
-- Would provide resources in an area which is
not as economically depressed as others
(locally or nationally).
-- Would begin a "new start" in FY 1976, although
major expenditures would occur in future years.
(FY 1976 outlays-- $8.8M)
Alternative #2.
(Submit legislation and budget request
for FY 1977)
FORD
Pro
GERALD
-- Provides no Administration endorsement of new
Federal expenditures in FY 1976.
Con
-- Leaves the Corporation staff without significant
functions in 1976.
4
-- Risks possibility of no congressional funding
for salaries and expenses of Corporation staff
in FY 1976.
-- Leaves a 12 month cloud over already negatively
affected private property in area, because of
requirement that construction be in conformance
with the plan.
-- Could contribute to further and more rapid de-
terioration of the area.
-- Conflicts with presumed intent of Congress in
allowing plan to become effective.
Alternative #2a.
(Endorse implementation of the plan
now but submit legislation and budget
request as part of the FY 1977 program.)
Pro
-- Would confirm Administration endorsement of program
but avoid new Federal expenditures in FY 1976.
Con
-- Same as #2 above, but possibly lessened by private
commitment to program in future.
Alternative #3.
(Submit legislation to repeal plan
implementation.)
Pro
-- Removes all questions regarding Federal involve-
ment and allows private market forces to operate.
-- Insures no future Federal expenditures for this
proposal.
Con
-- Could lead to haphazard development of the
"National Avenue."
Some other Federal plan for avenue development
could again become law.
-- Contrary to presumed congressional intent in
allowing plan to become operative.
5
Recommendation
OMB recommends Alternative #2a. Submission of a legislative
package to implement the Pennsylvania Avenue plan would be
deferred until submission of your FY 1977 program in
January 1976. An announcement at this time, however, that
within the budgetary totals arrived at for FY 1977, suffi-
cient funds will be included to get the plan underway would
lessen objections from proponents in Congress and elsewhere.
These alternatives have been reviewed by the Domestic
Council and Jack Marsh. They also recommend Alternative #2a.
FORD & LIBRARY