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Approved For Release 2001/09/07 : CIA-RDP77M00144R000800030001-3 Calendar No, 343''s 94TH C4DN9&ESS 1st Session I REPORT No. 94-854 GOVERNMENT IN THE SUNSHINE ACT REPORT COMMITTEE ON GOVERNMENT OPERATIONS UNITED STATES SENATE TO ACCOMPANY S. 5 TO PROVIDE THAT MEETINGS OF GOVERNMENT AGENCIES AND OF CONGRESSIONAL COMMITTEES SHALL BE OPEN TO THE PUBLIC, AND FOR OTHER PURPOSES U.S. GOVERNMENT PRINTING OFFICE 57-010 WASHINGTON : 1975 Approv d For Release 2001/09/07 :CIA-RDP77M00144R000800030001-3 Approved For Release 2001/09/07 : CIA-RDP77M00144R000800030001-3 COMMITTEE ON GOVERNMENT OPERATIONS ABRAHAM RIBICOFF, Connecticut, Chairman JOHN L. MCCLELLAN, Arkansas CHARLES H. PERCY, Illinois HENRY M. JACKSON, Washington JACOB K. JAVITS, New York EDMUND S. MUSKIE, Maine WILLIAM V. ItOTH, JR., Delaware LEE METCALF, Montana BILL BROCK, Tennessee JAMES B. ALLEN, Alabama LOWELL P. WEICKER, JR., Connecticut LAWTON CHILES, Florida SAM NUNN, Georgia JOHN GLENN, Ohio RICHARD A. WECMAN, Chief Counsel and Staff Director PAUL HOFF, Counsel PAUL L. LEVENTHAL, Counsel ELI E. NOBLY IAN, Counsel MATTHRW SCHNEIDER, Counsel JOHN B. CHILDERB, Chief Counsel to the Minority BRIAN CONBOY, Special Counsel to the Minority STEVEN HOROWITZ, Staff Assistant MARILYN A. HARRIS, Chief Clerk ELIZABETH A. PREAST, Assistant Chief Clerk HAROLD C. ANDERSON, Staff Editor Approved For Release 2001/09/07 : CIA` RDP77M00144R000800030001-3 Approved For Release 2001/09/07 : CIA-RDP77M00144R000800030001-3 CONTENTS Page Summary of Legislation---------------------------------------------- 1 Open Congressional Meetings-------------------------------------- 2 Open Agency Meetings-------------------------------------------- 2 Ex Parte Contacts----------------------------------------------- - 3 Background and Purpose of the Legislation----------------------------- 4 History of Legislation------------------------------------------------ Section-by- Section Analysis------------------------------------------- Introductory Sections--------------------------------------------- 11 Title I-Congressional Procedures--------------------------------- 11 Section 101-Senate Committees------------------------------- 11 Section 102-House Committees------------------------------- 13 Section 103-Conference Committees--------------------------- 14 Section 104-Joint Committees------------------------------ 14 Section 105-Exercise of Rulemaking Powers------------------ 14 Title II-Agency Procedures------------------------------------ 15 Section 201-Open Meetings----------------------------------- - 15 Agencies included--------------------------- 15 Definition of meeting------------------ 18" Effect of subsection 201(a) ------------------ 1 Section 202-Prohibition of Ex Parte Communications---------- $5 Section 203-Effect on Other Laws------------------ -- 39 Section 204-Effective Date----------------------------------- 40 Estimated Cost of Legislation---------------------------------------- 40 Role Call Vote in Committee------------------------------------------ 41 Changes in Existing Law--------------------------------------------- 41 Legislative Reorganization Act of 1946 as amended through March 7, 1975 41 ---------------------------------------------------------- Title I-Changes in Rules of Senate and House--------------------- 42 Chapter 5, Title 5, U.S. Code-------------------------------------- 44 Rules of the House of Representatives------------------------------ 46 Appendix ----------------------------------------------------------- 49 Summary of State Open Meetings Laws---------------------------- 50 Text of S. 5 as reported------------------------------------------- 53 Approved For Release 2001/09/07 : CIA-RDP77M00144R000800030001-3 Approved For Release 2001/09/07 : CIA-RDP77M00144R000800030001-3 Calendar RV , 343 94TH CONGRESS SENATE REPORT 1st Session f No. 94-354 GOVERNMENT IN THE SUNSHINE ACT Mr. CHILES, from the Committee on Government Operations, submitted the following REPORT The Committee on Government Operations, to which was referred the bill (S. 5) to provide that meetings of Government agencies and of congressional committees shall be open to the public, and for other purposes, having considered the same, reports favorably thereon with an amendment and recommends that the bill as amended do pass. SUMMARY OF THE LEGISLATION S. 5, the "Government in the Sunshine Act," is founded on the proposition that the government should conduct the public's business in public. The bill requires congressional committees and all Federal agencies subject to the legislation to conduct their meetings in the open, rather than behind closed doors. As a result of this legislation, the public will, for the first time, have the right to observe most of the meetings held by all congressional committees, and by 47 Federal agencies. The bill also establishes for the first time a clear, statutory prohibi- tion against private ex parte communications between agencies and outside parties on matters being adjudicated by the a ency. This provision assures that decisions required by law to be made solely on the basis of a public record will not be influenced by secret discussions that some of the parties to the proceeding, or the public, do not know about. The bill will help increase the public's faith in the integrity of government, enable the public to better understand the decisions reached by the Government, and better acquaint the public with the process by which agency decisions are reached. S. 5 in no way changes the substantive laws governing Congress or any agency. It in no way increases the right of the puic to actively Approved For Release 2001/09/07'XbIA-RDP77M00144R000800030001-3 Approved For Release 2001/09/07 : CIA-RDP77M00144R000800030001-3 2 participate in any meeting. What it does do is end the secrecy in which many Government decisions are now made. OPEN CONGRESSIONAL MEETINGS Title I amends the rules of the House and Senate governing com- mittee meetings, except hearings, by requiring such. meetings to be open except in certain specified circumstances. Sections 101 and 102 require the Senate. and the House to hold mark- ups and other committee meetings, other than hearings, in public unless the committee or subcommittee votes to close the meeting on one of five specific grounds. These exceptions cover such matters as national defense and foreign policy, personnel matters, criminal or civil investi- gations, personal privacy, and trade secrets. The meeting may be closed only if a quorum of the committee votes to close the meeting. Section 104 imposes the same requirements on the meetings of joint committees. Presently. the Senate rules provide that mark-ups and other voting sessions of most committees are c.losed,,unless the coninrit- tee votes to open them in specific instances, or unless the cornrnit.tee votes to adopt on its own. a general, open meeting rule. In the House, such meetings are open unless the conrnrittee votes to close them, but the applicable rule does not limit the reasons which a committee may invoke to close the meeting. Title I does not affect the rules now governing committee hear- ings because the law already requires them to be open unless commit- tees close them on one or more specified grounds. Section 103 requires that all meetings of conference committees be open unless either the House or Senate rnaxragers determine by a majority vote that the meeting should be closed. The bill does not specify the groinds that may justify closing the meeting; of a confer- ence committee. Presently there are no rules governing open con- ference committees. The House has already passed a rile identical to section 103, but its implementation is contingent upon the Senate passing the same rule. Section 105 explicitly states that title I is enacted pursuant to the rulemaking authority of both Houses. It recognizes the right of either House to alter the rules as they apply to such House, or to enact other rules. Section 201 applies to the Federal Election Commission and the 46 other Federal agencies headed by two or more Commissioners or simi- lar officers appointed by the President with the advice and consent of the Senate. The bill requires meetings between heads of such agenc- ies to be, open to the public. A list of the a encies covered by this section is included in the section-by-section analysis of subsection 201(a). Section 201(x) establishes the basic principle that all meetings be- tween the heads of these collegial agencies must be open to the Public. The term "meeting" is defined to include agency deliberations where at least a quorum of the agency's members meet to conduct or dispose of official agency business. Chance encounters which do not involve sub- stantive. discussions, and social events at which business is not dis- cussed, would not be covered by the section. Nor does the bill cover Approved For Release 2001/09/07 : CIA-RDP77M00144R000800030001-3 Approved For Release 2001/09/07 : CIA-RDP77M00144R000800030001-3 3 discussions between less than a quorum of the Commission, or discus. sions between a Commissioner and any number of staff employees. Subsection (b) provides that meetings can be closed by the agency only by a majority vote of all agency members. As in the case of com- mittee meetings, the bill requires that a meeting may be closed only on one of ten specified grounds. These grounds are based in most respects on the exceptions contained in the Freedom of Information Act. At the same time, an agency may decide that it would, on balance, be in the public interest to conduct in the open even those meetings which fall under one of the exceptions. Closed meetings are never mandated. To insure that the public knows about agency meetings, and has a chance to attend, the bill requires advance notice of each meeting and its subject matter. If any agency closes any meeting it must an- nounce its decision ahead of time, along with an explanation of its action, and make a verbatim record of the meeting. After the meet- ing, it must release to the public every major portion of the meeting that did not in fact involve sensitive matters. The bill also provides that if an agency must close a majority of its meetings because its dis- cussions involve certain specified types of sensitive information, the agency may follow expedited procedures when announcing the meet- ing, or deciding to close it to the public. The remaining provisions in section 201 establish procedures for enforcing the section's open meeting provisions in court. Section 202 establishes an across-the-board statutory prohibition of ex parte contacts between agency decisionmakers and all persons out- side the agency where the purpose of the contact is to discuss the merits of any matter being formally adjudicated by the agency. The new rule will prevent secret communications between the agency and an out- side person interested in the outcome of a proceeding. The section, ap- plicable to all agencies in the executive branch, whether or not they are multiheaded, replaces the very limited provisions in the Adminis- trative Procedure Act now governing ex parte communications. Section 202 applies to formal agency adjudications and rulemaking proceedings which are adjudicative in nature (so-called formal "on- the-record" rulemaking). In such cases all communications between agency officials and any outside person must either be on the public record, or have been preceded by reasonable notice to all parties. When- ever any communication occurs in violation of this section, the mate- rial submitted, or a record of the oral conversation held, must be placed in the public record of the proceeding. Whenever any person know- ingly engages in such illegal communications with agency officials about a pending case, the agency may, in its discretion, take action on the merits against such party. This last provision reflects case law approving similar remedial action which agencies have taken on their own. See, e.g., Jacksonville Broadcasting Corporation v. FCC, 348 F. 2d 75 (1965). Section 202 strengthens ex parte provisions now in the Administra- tive Procedure Act in a number of ways. It extends the persons gov- erned by it to include all those agency employees involved in the de- Approved For Release 2001/09/07 : CIA-RDP77M00144R000800030001-3 Approved For Release 2001/09/07 : CIA-RDP77M00144R000800030001-3 4 cisionmaking process, including commissioners. Currently only hearings examiners are covered. It broadens the type of agency pro- ceedings covered so as to include not only formal adjudications, but also formal rulemaking proceedings governed by the same rules as formal adjudications. It specifies that. the prohibition against ex parte communications shall start at an early point in the proceedings. It applies to all communications "relevant to the merits of the proceed- ings." It precisely spells out for the first time the corrective steps that an agency official must take if an ex parte communication does take place. And it specifically provides for sanctions that an agency may impose against any person violating the rules on ex parte communica- tions. BACKGROUND AND PURPOSE OF THE LEGISLATION This bill represents the logical extension of legislation passed by Congress over the last decade designed to open the government's deci- sionmaking process to the public. In 1955 the House of Representatives created a Special Subcom- mittee on Government Information chaired by Rep. John E. Moss (D.-Calif.). The investigative and legislative hearings held by that panel contributed significantly to the creation and enactment in 1966 of the Freedom of Information Act, 5 U.S.C. 552. In 1972, while major oversight hearings were underway regarding-t lie administration and operation of the Freedom of Information Act, in particular, and government information policy in general, another attempt to open the people's business to public view culminated in the, enactment of the Federal Advisory Committee Act, 5 U.S.C. App. I. In addition to its other provisions, this statute establishes the presumption that the meetings of advisory committees and study panels should be open to the public. In 1974 the Congress enacted new legislation amending and strength- ening the public's right; to gain access under the Frec..doni of Informa- tion Act to information in the government's possession. This bill is fully in accord with the principles and aims of the pre- vious legislation. One important effect of the bill will be to increase the public's con- fidence in government. Mr. Lou Harris, a leading pollster, summed up the current public mood during committee hearings on the Govern- ment in the Sunshine legislation as follows: At this point in our history, the people are roundly fed up with what they feel is incompetence, inefficiency, corruption, lack of real public interest, and just plain lack of decency in the governing circle of this country. I do not say that idly, Mr. Chairman. Most of all, people are firmly wedded to the notion that if the Federal Government were opened up, rather than gross inefficiencies and lack of candor resulting, to the contrary, an opening of the Federal decisionmaking process would indeed lead to wiser, sounder, more creative and better decisions. (Hearings on S. 260, 1974, p. 163.) The committee is confident that the public will be favorably im- pressed by the integrity, competence, and dedication of the great majority of agency heads. Open meetings will thus help increase the Approved For Release 2001/09/07 : CIA-RDP77M00144R000800030001-3 Approved For Release 2001/09/01 : CIA-RDP77M00144R000800030001-3 public's confidence in government by permitting the public to observe firsthand the responsible way agency heads carry out their duties. On the other hand, where the government is not functioning as well as it could public exposure should help insure that the quality of work remains at the highest possible level. The committee believes that it would be far less damaging to government if the facts, regardless of their nature, were disclosed openly to the public and the press, rather than emerging only indirectly through speculation or scandal. Press speculation or partial leaks of information are often more damaging than the actual facts. (See, e.g., Hearings on S. 260, 1974, pp. 16, 217, 295.) Where the press must rely on leaks for its informa- tion there will inevitably be inaccuracies as well as partisan or self- serving statements. As John Gardner, Chairman of Common Cause, said when testify- ing in strong support of S. 5: Secrecy is fatal to accountability. Citizens cannot hold gov- ernment officials accountable-if they do not know what gov- ernment officials are doing. All of the great instruments of accountability that the citizen must depend on-Congress, the courts, the electoral process, the press-may be rendered im- potent if the information crucial to their functions is with- held. (Hearings on S. 260, 1974, p. 51.) The public is naturally more distrustful of government conducted in secret. This suspicion arises in large part from the fact that meetings are closed, not from any specific evidence that improper or illegal ac- tivities are taking place behind closed doors. Regardless of what the public actually learns about the government, the fact that this bill opens meetings formerly closed should in itself remove an important source of any distrust the public may have of government. In addition, this bill should enhance greatly the public's under- standing of the decisions reached by the government.. The Freedom of Information Act enables the public to review many of the domuments on which government decisions are based. These represent a record of what has already transpired. Yet up to now the public has not had a full opportunity to learn how or why government official make the important policy decisions which they do. All too often the meetings at which such decisions are made are closed to the public. Interested persons must content themselves with elementary minutes, or back- ground papers tangentially related to the official agenda. Formal state- ments in support of agency actions are frequently too brief, or too gen- eral, to fully explain the Commission's reasoning, or the compromises that were made. As a result, the public may not understand the reasons an agency has acted in a certain way, or even what exactly it has de- cided to do. By requiring important decisions to be made openly, this bill will create better public understanding of agency decisions. The committee believes that this openness will significantly increase cooperation between the public and government agencies. It will en- hance the public's comprehension of the difficult choices agencies must often make. and provide a greater appreciation of the problems they face. Moreover, openness will better demonstrate what facts and policy considerations the agency found important in reaching its decision, and what alternatives it considered and rejected. As citizens listen to debate Approved For Release 2001/09/07 : CIA-RDP77M00144R000800030001-3 Approved For Release 2001/09/07 : CIA-RDP77M00144R000800030001-3 6 between the heads of an agency, they will be able to identify precisely the issues that are of most concern to the agency. Greater public understanding of the exact nature and reason for agency decisions should also promote greater compliance. Members of the public directly affected by an agency's action will no longer have to guess what exactly is expected of them as a result of a particular decision. They will know not only what the agency decided, but the purvose and intent of the agency's actions. Finally, as all elements of the public gain an equal opportunity to learn about the issues and problems confronting agencies, wider and more informed public debate of the agency's policies becomes possible. Increased public interest and discussion cannot help but contribute to improve decisionmaking process. One of the leading scholars on administrative law, Professor Ken- neth Culp Davis of the University of Chicago Law School, summa- rized his strong support of the Government in the Sunshine legislation as follows : Open meetings would at first cause consternation and opposition. But gradually open meetings would be accepted. Making more of the realities known to the public would facilitate criticism, and the principal result would be to improve the quality of what is done. Furthermore, the demo- cratic influence would be stronger. The relation between agen- cies on one side and media and pressure groups of the other side would be improved, because misunderstanding resulting from partial information, as distinguished from full infor- mation, would be reduced. (See Government in the Sunshine: Responses to Subcommittee Questionnaire, Government Op- erations Committee Print, 1973, p. 67.) The success Congress and the committee have recently had in open- ing its activities to the public confirms the effectiveness and practical- ity of S. 5. In the first year after the House in 1973 adopted a rule requiring committees to hold their bill-drafting meetings in public, unless the committee voted to close the meeting, 80 percent of all mark-ups were open to the public. Previously, every committee but one conducted its mark-ups in private (Hearings on S. 260, 1974, p. 47). In 1974, the number of open committee mark-ups in the House increased to 88 per- cent. In 1975 the House confirmed the success of such open government legislation by re-enacting its rule on open committee meetings. At the same time it strengthened one of its provisions. This committee believes that its own experience with open mark-ups has clearly been a success. Since the committee adopted a rule re- quiring open mark-ups, it has not voted to close a single one. Conduct- ing mark-ups in public has not interfered with the orderly and effi- cient conduct of business. The Senate Committee on Banking, Housing and Urban Affairs, and the Committee on Interior and Insular Affairs have had similar rules since 1973. These committees also conclude without hesitation that the open-meeting rule has neither interfered with their work, nor in- hibited free and open discussions. (Hearings, pp. 92-94, p. 104.) Approved For Release 2001/09/07 : CIA-RDP77M00144R000800030001-3 Approved For Release 2001/09/077: CIA-RDP77M00144R000800030001-3 Over the last 2 years the Government Operations Committee, the Banking, Housing, and Urban Affairs Committee, and the Interior Committee have dealt effectively in open sessions with such important and often controversial legislation as the Congressional Budget and Impoundment Control Act of 1973, the Energy Reorga- nization Act of 1973, the Housing and Community Development Act of 1974, the Export-Import Bank, and legislation concerning energy allocation, land use policy, consumer protection, and surface mining and mineral leasing. Open meeting laws are also a widely accepted and successful part of State law. Forty-nine States now have open meetings laws, and thirty-five States have constitutional provisions relating to open government. State laws on open government have developed largely since 1950, when only one law was in effect. In the last few years especially, such legislation has gained wide acceptance at the State level. Nine new, laws were passed during 1972-73. In 1974, ten States strengthened ex- isting legislation. Moreover, no open meeting law has been repealed except to be strengthened. Several States have also recently amended their constitutions to add more comprehensive provisions on open government. Forty-nine States open state-level agencies. Forty-four States provide for open meetings of county and city level nonlegislative agen- cies, as well as city councils and county boards. Currently, State legislatures in 35 States open committee deliberations to the public. In contrast, only 17 States opened committee meetings to the public as a matter of course in 1972. The appendix to this report contains a sum- mary of the open meeting laws in all 50 States. The State of Florida has the most comprehensive open meetings law in the country. The Florida law opens to the public all discussions and deliberations of government where "official acts are to be taken." Since its passage in 1967, Florida's "Sunshine Law" has been well re- ceived by the judiciary. The courts have neither significantly limited the broad scope of the law, nor riddled it with exceptions. Indeed, the judicial acceptance of this strong open government law has fostered the development of similar laws in other States. Governor Reubin Askew of Florida, testifying on the Florida law before the committee, stated that ". . . Predictions that too much sun- shine would lead to unnecessary embarrassment of public employees, costlier land acquisitions, and other problems have not been borne out by the Florida experience." A major study of the Florida law by the Center for Governmental Responsibility polled city councilmen across the State and found that 77 percent favored the law, though several exemptions, similar to those in S. 5, were proposed. The committee received views in support of open meeting laws from the Attorney General's Office in a number of other States as well. The Attorney General of California told the committee that open meet- ing requirements have generally had a "salubrious effect" in that State. The Attorney General of Washington believes the law in that State "has been beneficial to the citizens" of the State and "has led to increas- ing awareness by those deliberative bodies affected by it for the need to adequately prepare themselves for meetings." The Attorney General Approved For Release 2001/09/07 : CIA-RDP77M00144R000800030001-3 Approved For Release 2001/09/07 :JIA-RDP77M00144R000800030001-3 of North Carolina concludes that the State's open meetings bill "has substantially improved the governmental process," and that it has "helped increase public confidence in government." The all but universal trend at the State level in favor of Government in the Sunshine legislation is clear evidence that such legislation is both practical and beneficial. Such widespread adoption of the legisla- tion would not have occurred had the States found them unsuccessful or unworkable. One recent commentary on such State laws in fact concluded that "contemporary arguments by commentators in opposi- tion to such laws are virtually nonexistent." (45 Mississippi Law Journal 1151, 1162.) In short, this committee is convinced that past experience with open meeting legislation constitutes strong grounds for believing that the Federal Government will benefit significantly from general legisla- tion requiring meetings in both the executive and legislative branches to be open. Section 202, prohibiting ex parte contacts, answers a similar need to insure openness in the way the Government decides formal adjudi- cation and rulemaking proceedings. Ex parte contacts made secretly between one party to the proceed- ing and an agency official prevent other interested parties from count- ering the arguments presented. It may also make it impossible for the public to understand why an agency decided the case as it did. Such contacts make it difficult for Congress to exercise effective over- sight of the practices and policies of regulatory agencies. In short, ex parte contacts are totally inconsistent with the principle of open government. Although the undesirability of ex parte cont=acts has long been recognized, the Administrative Procedure Act contains no general provision specifically prohibiting them. Section 2112 amends the Ad- ministrative Procedure Act to clarify and reemp hasive the extreme seriousness with which ex parte contacts should be viewed. It pro- vides clear notice to all concerned that ex parte contacts are not only illegal, but may actually result in the agency finding on the merits against a party who knowingly violates the provision. The need for regulation of ex parte contacts in adjudicative pro- ceedings was first dramatized by the exposure of improper influence in the granting of broadcast licenses by Federal agencies in the 1950's. The 1961-62 Administrative Conference attempted to deal with the problem by recommending that each agency promulgate a code of behavior governing ex parte contacts. While a number of the agencies did formulate such rules, they vary greatly in the types of contacts covered. Furthermore, rules adopted by an' agency may be modified or repealed by the same agency at any time. Such rules lack the au- thority and permanence of a general statutory prohibition of ex parte contacts. In 1963 Administrative Law Section of the American Bar Associa- tion undertook a study of the Administrative Procedure Act, including a review of its ex parte provisions. In 1970 the House of Delegates of the American Bar Association endorsed enactment of a broad rule prohibiting ex parte contacts. Between 1970 and 1974 an Association committee drafted language implementing this' resolution. Section Approved For Release 2001/09/07 : CIA-RDP77M00144R000800030001-3 Approved For Release 2001/09/07: CIA-RDP77M00144R000800030001-3 202 of the bill follows closely the wording developed by the American Bar Association. In 1884 Woodrow Wilson stated : Light is the only thing that can sweeten our political atmosphere-light thrown upon every detail of administra- tion in the departments-light blazed full upon every feature of legislation-light that can penetrate every recess or corner in which any intrigue might hide; light that will open to view the innermost chambers of Government. The committee fully agrees. The legislation was initially introduced as S. 3881 on August 9, 1972, by Senator Lawton Chiles. While there was informal consideration of the bill during the 92d Congress, no legislative action was taken. As a consequence of these discussions, a more developed and comprehensive proposal was drafted and offered by Senator Chiles in the 93d Congress. Introduced on January 9, 1973, with several cosponsors, the measure (S. 260) con- tained two titles, one pertaining to congressional committee proceed- ings and one governing executive branch agency meetings. A new section regarding ex parte communications was added to the latter title. In the summer of 1973, the Subcommittee on Reorganization, Re- search, and International Organizations, chaired by Senator Ribi- coff, solicited the views of public administration experts, legal scholars, representatives of the media, and professional organizations. (See Government in the Sunshine: Responses to Subcommittee Question- naire, Senate Government Operations Committee Print 1973). An overwhelming majority of the responses to the questionnaire strongly supported Government in the Sunshine legislation. Two days of hearings on S. 260 were held by the subcommittee on May 21 and 22, 1974, under the direction of Senator Chiles. An addi- tional day of hearings was held on October 15. The bill was reintroduced by Senator Chiles as S. 5 on January 15, 1975. On May 12, the Subcommittee on Federal Spending Practices, Effi- ciency, and Open Government, meeting in open session, unanimously adopted an amended version of S. 5. The full committee met in open session on June 18 and July 9, and the bill, as further amended, was ordered reported by the full committee on July 9th by a unanimous vote. In preparing this legislation the committee has consulted with a large number of legal experts both within the government and the private sector. It received comments on the legislation from 43 agencies of the government. During its consideration of S. 5 the committee made a large number of amendments to the bill in response to suggestions by members of Federal agencies, Congress and the public. These amendments further insure that the Government will be able to open their activities to the Approved For Release 2001/09/07 : CIA-RDP77M00144R000800030001-3 Approved For Release 2001/09/07 : CIA-RDP77M00144R000800030001-3 10 public without imposing unnecessary procedural burdens on the Gov- ernment, or interfering with the Government's effectiveness. The fol- lowing is a summary of some of the more important amendments adopted by the committee. Sections 101 through 103 have been revised to conform in most re- spects to S. Res. 9 and S. Res. 12 and the provision in the Congressional Budget Act of 1974, Public Law 93-314, enacted by Congress in 1974. A number of the procedural requirements contained in the original bill were eliminated. Section 201 was amended in a number of wa) . The scope of section 201 (a) was limited so that is applies only to those multiheaded agencies headed by Officials appointed by the President with the advice and consent of the Senate. The definition of "meeting" was redrafted to exclude many discussions which are informal in nature. Subsection (b) was amended to provide agencies with additional flexibility to close meetings where necessary. A number of paragraphs were added spec- ifying additional grounds justifying a closed meeting, and the scope of other paragraphs, such as the one governing adjudication, was broadened. Another amendment provides that an agency may withhold information about a meeting for the same reasons that may require the agency to close the meeting in the first place. Other wording added to subsection (b) clarifies the right of an agency to close a meeting where it determines that the meeting can be reasonably expected to involve sensitive matters. Absolute certainty is not required on the part of the agency. The section is not intended to require such a showing of certainty in any judicial proceeding invoking this section. Amendments to subsection (c), (d) and (e) relieve agencies of a number of the procedural requirements contained, in the original bill. One amendment to subsection (c) authorizes agencies in certain cases to issue general regulations specifying in advance the meetings that must be closed. Another amendment gives agencies the right to change on short notice the agenda of their meetings, or to revise their prior decisions to open or close meetings. The public announcement an agency must make of its meetings was expanded to include notice in the Federal Register either before or after the meetings is held. Instead of requiring an agency to maintain a transcript or elec- tronic recording of all its meetings, subsection (e) was amended to require a verbatim record of only those meetings closed to the public. Meetings discussing cases in adjudication were exempted from the requirement of a verbatim record in all cases. Other changes provide that agencies will not have to edit the transcripts in great detail, nor provide written explanations of any deletions it makes in the tran- scripts released to the public. Other amendments to section 201 prevent district courts from over- turning agency action taken at a meeting improperly closed to the pub- lic, and strictly limit the ability of a court to assess the costs of litigation against an individual agency member. The wording in section 202 governing ex parte contacts was changed in several ways. One amendment limits the authority of an agency to rule on the merits against a party committing an ex parte violation. As now worded, an agency may rule against such a party only where the violation was knowing. Similarly, wording was added making a Approved For Release 2001/09/07 : CIA-RDP77M00144R000800030001-3 Approved For Release 2001/09/01 : CIA-RDP77MOO144R000800030001-3 communication by one person, on behalf of another, ex parte only where it was done with the knowledge of the other person. Another amendment deletes a provision in the original bill that exempted ex parte communications from certain types of persons who were neither parties, intervenors, nor Government officials. The provision granting the district court jurisdiction to enforce the requirements of the section was deleted. Finally, provisions were added to section 203 clarifying the relation- ship between this bill and the Freedom of Information Act and the Privacy Act. SECTION-BY-SECTION ANALYSIS INTRODUCTORY SECTIONS Section 1. This section states that the bill may be cited as the "Government in the Sunshine Act." Section 2. This section establishes as the policy of the United States the principle that. the public should have the fullest practicable knowledge about the decisioninaking process of the Government. It is the purpose of the bill to implement this policy without infringing upon the rights of individual citizens and the ability of the Govern- ment to carry out its responsibilities. The provision thus reaffirms the principle that openness is desirable in a democratic Government. It is the intent of this bill that governmental bodies conduct their delibera- tions in public to the greatest extent possible. At the same time, the section explicitly recognizes that the bill must also protect the ability of the Government to carry out its responsibilities, and protect the rights of individuals, such as the right of privacy, or the right to a fair and impartial trial. The bill's provisions have been drafted in full recognition of the. fact that Government, if it is truly to serve the public, must not only be open, but also effective and fair. Section 3. This section defines "person" in the same way as the Administrative Procedure Act, and should be interpreted in the same way as that act. The definition includes an individual, but excludes an agency. TITLE I-CONGRESSIONAL PROCEDURES SECTION 101-SENATE COMMITTEES Section 101(a) . Paragraph (1) strikes the portion of section 133 (b) of the Legislative Reorganization Act now governing executive ses- sions of Senate committees. The present rule provides that markups and other voting sessions of the committee will be closed unless the committee votes to open them in specific. instances, or unless the com- mittee votes to adopt on its own a general open meeting rule. Paragraph (2) amends the Legislative Reorganization Act to provide new rules governing all meetings of a Senate committee or subcommittee discussing committee business, with the exception of hearings. The section establishes a presumption in favor of openness of all Senate committee meetings in accordance with the general policy of the bill. Openness should be the rule and secrecy the exception. The new rule requires that all committee meetings, other than hearings, shall be open unless a majority of the members of the committee or Approved For Release 2001/09/07 : CIA-RDP77M00144R000800030001-3 Approved For Release 2001/09/07 : CIA-RDP77M00144R000800030001-3 12 subcommittee present decide by record vote to close the meeting, or a portion of the meeting, on one of five specified grounds. These five grounds are designed to cover those instances when it may be necessary for a committee to meet in closed session. Even if a matter does come within one of these five provisions, the committee must decide in each particular case whether the need for secrecy outweighs the general need for openness in Government. Since this judgment must be made in each case, with full recognition of all the facts, the rule requires the committee to vote on each meeting sepa- rately. The committee may not adopt general rules closing certain types of meetings. If a committee discussion of a particular matter is extended over several days, the committee should vote at the beginning of each day's meeting whether-to close the meeting. Where only a por- tion of a committee meeting needs to be closed to the public, the coin- mittee should arrange for the remainder to be open. The five grounds which a committee may invoke to close a meeting are listed in clauses (1) through (5) of the new rule. Section 101 (a) (1) exempts matters necessary to be. kept secret in the interests of national defense or the foreign policy of the United States. This exemption is similar to that in the Freedom of Information Act, as amended (5 U.S.C. 552(b) (1) ). The meaning that the terms "national defense" and "foreign policy" have under that act should provide guidance to Congress in implementing this provision. How- ever, since the section applies to the Congress, not the executive branch, the exemption does not expressly rely on the status any material may have under executive branch rules of classification. Section 101 (a) (2) exempts matters relating solely to committee staff personnel or internal staff management or procedure. The provision recognizes that discussions involving such matters as the hiring of a particular individual to serve on the staff of the committee should be be closed so as to enable a candid discussion of the individual's qualifications. Section 101 (a) (3) exempts matters which will tend to charge an individual with crime or misconduct; injure the professional reputa- tion of any individual, or expose any individual to public contempt or obloquy; or represent a clearly unwarranted invasion of an individ- ual's privacy. Any committee must be aware of the effect publicity arising from one of its meetings may have on an individual's reputation. Special care must be taken not to unfairly injure an individual's reputation by unconfirmed or misleading statements. However, the language of the exemption should not be read as justifying the closing of every committee meeting that may in some way affect an individual's reputa- tion. Such restrictiveness would not be in accord with the intent of either the bill or this clause. In each case, the committee will have to balance the possible harm to the individual against the need for open- ness'in Government. The possibility that, one member of the committee might make a casual remark concerning some individual might not constitute grounds for closing a meeting, whereas formal consideration of committee action in some way censuring an individual might justify closing the meeting. In deciding whether to close a particular meeting, different stand- ards should apply to private individuals and public officials. The pub- lic has a right to know fully about the actions of Govern Approved For Release 2001/09/07: CIA-RDP77M0014 000ob0S30001-3 Approved For Release 2001/09/07 : CIA-RDP77M00144R000800030001-3 in their public capacity. What is considered an invasion of privacy of a private citizen may be justified when the official conduct of a public employee is involved. Section 101 (a) (4) exempts discussions that would disclose the identity of an informer or law enforcement agent, or that would dis- close information relating to the investigation or prosecution of any civil or criminal violation of law that must be kept confidential in the interests of effective law enforcement. It is expected that this provision will be applicable primarily to meetings concerning such aspects of a committee investigation as the issuance of a subpena. Premature disclosure of the committee's deci- sion to issue the subpena could destroy its effectiveness. Section 101 (a) (5) exempts matters disclosing trade secrets or com- mercial or financial information where such matter is required to be kept secret by a statute, or where the information was obtained on a confidential basis and disclosure would cause undue injury to a per- son's competitive position. Trade secrets and commercial or financial information must meet the same tests under this exemption. The information can not be gen- erally applicable to an industry, but must "pertain specifically to a given person." The information discussed at the meeting must di- rectly involve such sensitive matters, not merely be peripherally re- lated to them. The criteria established in clause 5 (A) is applicable only to stat- utes which specifically requiring trade secrets or commercial or finan- cial information to be kept confidential. General statutes which permit government officials to withhold information in the public interest do not meet this test. For example, it does not include the general type of statute involved in Admindstrator, FAA v. Robertson, 95 S. Ct. 2140 (1975). Clause 5(B) establishes an alternative basis for closing meetings under this provision. Two criteria must be met. First, the government must have obtained the information under a pledge of confidentiality. Secondly, the information must be kept confidential in order to pre- vent undue injury to the competitive position of the person to whom the information specifically relates. In deciding whether the competi- tive injury would be "undue," the committee will have to balance the legitimate public interest in attending the meeting against the degree to which disclosure would substantially and unfairly injure a person's business interests. Section 101(b) . This subsection is a conforming amendment repeal- ing the present provision in the Standing Rules of the Senate govern- ing the meetin, other than hearings, of all standing committees. Section 101(c). This subsection amends the table of contents of the Legislative Reorganization Act of 1946 to include a reference to the new provision governing Senate committees enacted by section 101(a) of the bill. SECTION 102-HOUSE COMMITTEES This section amends the rules of the House of Representatives now governing all meetings, other than hearings, by adopting exactly the same rules as section 101 (a) adopts for the Senate. The present rules of the House provide that all such meetings, except those involving internal committee budgets or personnel matters, will be open unless Approved For Release 2001/09/07 : CIA-RDP77M00144R000800030001-3 ept. 94-354---3 Approved For Release 2001/09/07 : CIA-RDP77M00144R000800030001-3 14 the committee votes to close them. Since the rules do not specify the Founds that justify closing a meeting, a committee may close a meet- ing for any reason. Section 102 would require House committees to close their meetings only under. the same specified circumstances as permit a Senate com- mittee' to close its meetings under section 101(a) . Public understanding of the, rules, governing open meetings in the Congress will be enhanced if the same open-meeting rules govern committee meetings in both Houses. However, this provision is included with full recognition of the right of the House of Representatives to establish its own rules governing committee meetings. Section 105 of the bill specifically re- serves the right of the. House of Representatives to adopt different rules should it wish to do so. SECTION 103-CONFERENCE CO iMITTEES Section 103 (a). This subsection adds a new provision to the Legisla- tive Reorganization Act to govern conference committees. The rule pro- vides that conferences between the Senate and the House will be open to the public unless the managers of either the Senate or House in open session decide to close the meeting on that particular day by a rollcall vote of the majority of such managers present. The provision is identical to a resolution the House has already approved this year, House Rule XXVIII, clause 6. The House action must await Senate action before it can become effective. While the pro- vision establishes a presumption of openness, either House reserves the right to close a meeting of a conference committee should it so wish. Section 103(b). This subsection amends the table of contents of the Legislative Reorganization Act of 1946 to include a reference to the new rule on House-Senate conferences. SECTION 104-JOINT COMMITTEES Section 104 (a). This subsection amends the Legislative Reorganiza- tion Act by adopting rules governing joint committee meetings. The rules are identical to the rules section 101(a) establishes for the meet- ings of Senate committees and section 102 (a) establishes for the meet- ings of House committees. They should be interpreted and adminis- tered in the same way. Section 104(b). This subsection amends the table of contents of the Legislative Reorganization Act of 1946 to include a reference to the new rules governing the meetings of joint committees. SECTION 105-EXERCISE OF RLLEMAIiING POWERS This section specifies that the rule changes contained in title I are enacted pursuant to the rulemaking authority of the Senate and the House of Representatives. It recognizes that under the Constitution either House retains the full right to subsequently change the rules established by title I insofar as they apply to such House, regardless of the actions of the other House. It is in no way the intent of the committee to interfere with the right of the House of Representatives to adopt other rules governing the opening of committee meetings should it so wish. Approved For Release 2001/09/07 : CIA-RDP77M00144R000800030001-3 Approved For Release. 2001/09/07 : CIA-RDP77M00144R000800030001-3 15 TITLE II-AGENCY PROCEEDINGS SECTION 201-OPEN MEETINGS Section 201(a). This subsection extends the principles of open gov- ernment to Federal agencies by requiring meetings between the various heads of a multiheaded agency to be open to the public. The Declaration of Policy in section 2 applies with equal force to title I and title II. Subsection (a) also defines the specific agencies, and the spe- cific types of meetings, subject to the open meeting requirement. AGENCIES INCLUDED Subsection 201 (a) defines "agency" as in the Administrative Proce- dure Act. A governmental body may fall within the Administrative Procedure Act definition, and thus fall within section 201, assuming it: qualifies under the other tests established by the subsection, even if that agency is not actually governed by the other provisions of the Administrative Procedure Act. Section 201 does not apply, however, to all agencies. To be subject to the section's open meeting provisions, the collegial body comprising the agency must consist, of two or more individual members, a ma- jority of whom are appointed by the President with the advice and consent of the Senate. Because of~the unique nominating and confirma- tion, process governing appointments to the Federal Election Com- mission, this agency is included by specific reference. The term "col- legial body comprising the agency" does not refer to a single individual who heads an agency with the assistance of staff, nor to the staff of an agency. The term is limited solely to the two or more individuals serving on the commission or board which heads the agency, though it does include meetings of such a body when agency staff or outside individuals are also present. The subsection does not cover bodies typically known as advisory committees. However, it does include other bodies comprised of part- time Government employees which meet from time to time to review agency activities and give guidance to staff, approve staff actions, re- view and approve the agency's proposed budget, and so on. Such a board would constitute "the collegial body comprising the agency" even though day-to-day supervision is provided by a single Administrator. Any body that is subject to this bill shall not at the same time be subject to the provisions of the Federal Advisory Committee Act. Simi- larly, any body that is now governed by the Federal Advisory Com- mittee Act, or which is determined in the future to be governed by that act, is not governed by this bill. The committee will rely on the con- tinuing oversight of the Subcommittee on Reports, Accounting, and Management to insure that any body that is properly subject to the Advisory Committee Act will continue to follow the provisions of that act. The following is a list of agencies that in the committee's judgment fre covered by., is ctinii:-Tt is based on consultations with the De- partment of Justice. In the final analysis, however, the wording of section 551 of title 5 and this subsection, rather than this list, must govern : Board for International Broadcasting; Approve edi ERg&>g~c2d l J 707 : CIA-RDP77MOO144R000800030001-3 Approved For Release 2001/09/07 : CIA-RDP77M00144R000800030001-3 16 Commodity Credit Corporation (Board of Directors) ; Commodity Futures Trading Commission; Consumer Product Safety Commission;. Equal Employment Opportunity Commission; Export-Import Bank of the United States (Board of Directors) ; Federal Communications Commission; Federal Election Commission; Federal Deposit Insurance Corporation (Board of Directors) Federal Farm Credit Board within the Farm Credit Adminis- tration ; Federal Home Loan Bank Board; Federal Maritime Commission; Federal Power Commission; Federal Reserve Board; Federal Trade Commission; Harry S. Truman Scholarship Foundation (Board of Trustees) ; Indian Claims Commission; Inter-American Foundation (Board of Directors) Interstate Commerce Commission; Legal Services Corporation (Board of Directors) Mississippi River Commission ; National Commission on Libraries and Information Science; National Council on Educational Research; National Council on Quality in Education; National Credit Union Board; National Homeownership Foundation (Board of Directors) ; National Labor Relations Board ; National Library of Medicine (Board of Regents) National Mediation Board; National Science Board of the National Science Foundation; National Transportation Safety Board; Nuclear Regulatory Commission; Occupational Safety and Health Review Commission; Overseas Private Investment Corporation (Board of Direc- tors) ; Parole Board; Railroad Retirement Board; Renegotiation Board; Securities and Exchange Commission; Tennessee Valley Authority (Board of Directors) ; Uniformed Services University of the Health Sciences (Board of Regents) ; U.S. Civil Service Commission; U.S. Commission on Civil Rights; U.S. Foreign Claims Settlement Commission; U.S. International Trade Commission; U.S. Postal Service (Board of Governors) ; and U.S. Railway Association; S. 5 does not mandate open meetings in the case of single-headed agencies, such as the Departments of Defense, Commerce, or Treasury, Approved For Release 2001/09/07 : CIA-RDP77M00144R000800030001-3 Approved For Release 2001/09/07 : CIA-RDP77M00144R000800030001-3 17 because of the different nature of such agencies. Multiheaded agencies operate on the principle of give-and-take discussion between agency heads. There is a tradition of public dissent; though the agency takes a final action, it does not necessarily speak with one voice. The agency heads are high public officials, having been selected and confirmed through a process very different from that used for staff members. Their deliberative process can be appropriately exposed to public scrutiny in order to give citizens an awareness of the process and ra- tionale of decisionmaking. The single-headed agency operates differently. Only the single head is ultimately responsible for agency actions, while the staff functions as extensions of the head. Opening staff meetings presents many com- plications, not the least of which is determining which of the in- numerable staff meetings that occur every day should be open. While these difficulties may not be insurmountable, they require a different approach than used in section 201. It is the committee's hope that each agency not covered by section 201 will closely examine its internal procedures and take on its own every step it can to open up its decisionmaking process, including meetings, to the public. This might include, for example, opening to the public meetings between agency officials and outside parties, and providing the public with more information about why an agency took a particular decision, and the alternatives it considered. Section 201 (a) covers all multiheaded agencies, because the principle of openness applies to all such agencies regardless of the particular nature of its responsibilities. While many of those covered are regula- tory, others have more general policymaking roles. The decisions of one may involve no less important policy questions than the decisions of the other. Opening one type of meeting to the public is as important as opening another type. The notion of including some multiheaded agencies in section 201 and excluding others would do violence to the fundamental purpose of the legislation, which is to open Government to the people wherever and whenever possible. Section 201(a) provides that all meetings of the individual Com- missioners, board members, or the like, except those discussions ex- empted by subsection (b), must be open to the public. Included within this requirement are meetings of agency subdivisions authorized to take action on behalf of the agency. The open meeting requirement applies to panels of a Commission, or regional boards, consisting of two or more agency heads and authorized to take action on behalf of the agency. To be a subdivision of an agency covered by this subsec- tion, the panel need not have authority to take agency action which is final in nature. Panels or boards composed of two or more. agency members and authorized to submit recommendations, preliminary de- cisions, or the like to the full commission, or to conduct hearings on behalf of the agency, are required by the subsection to open their meetings to the public. Some agencies do not vest all power in the multiheaded body, but reserve certain functions for the chairman alone. In such cases, meet= ings of the chairman with staff members, or even with other individual agency heads, acting solely as informal advisers, would not have to be open. Approved For Release 2001/09/07 : CIA-RDP77M00144R000800030001-3 Approved For Release 2001/09/07 : CIA-RDP77M00144R000800030001-3 Interagency meetings between members of one agency and officials from other agencies would not come within the provisions of this sec- tion unless a majority of the members of one or more of the agencies attended the meeting. Similarly, interagency committees are excluded from this section. DEFINITION OF MEETING The definition in subsection (a) of the meetings required to be open to the public is a critical part of the section. meeting means the. deliberations of at least the number of individual agency members re- quired to take action on behalf of the agency where such deliberations concern the joint conduct or disposition of official agency business. In addition to business meetings of the agency, it includes hearings and meetings with the public. To be a meeting the discussion must be of some -substance. Brief ref- erences to agency business where the commission members do not give serious attention to the matter do not constitute- a meeting. A chance encounter where passing reference is made to agency business, such as setting a time or place for the agency heads to meet, would not be a meeting. A luncheon attended by a majority of the Commissioners would not be a. meeting subject to the bill simply because one Commis- sioner made a brief, casual remark about an agency matter which did not elicit substantial further comment. The words "deliberation" and "conduct" were carefully chosen to indicate that some degree of for- mality is required' before a gathering is considered a meeting for pur- poses of this section. The definition of meetings includes the conduct, as well as the dis- position, of official' agency matters. It is not sufficient for the purposes of open government to merely have the public witness final agency votes. The meetings opened by section 201 (a) are not intended to be merely reruns staged for the public after agency members have dis- cussed the issue in private and predetermined their views. The whole decisionmaking process, not merely its results, must be exposed to public scrutiny. To constitute a meeting for purposes of this section the requisite number of agency heads must at least be potentially involved in the discussion. The use of the word "joint" is intended to exclude instances where one or more agency member gives a formal speech concerning agency business, and other members of the commission are in the audience. The word also excludes instances where a single agency head, authorized to conduct a, meeting on behalf of the agency, or to take action on behalf of the agency, meets with members of the public, or staff. In all cases, the meeting must involve, at least two agency The deliberations must also involve "official agency business." Dis- cussions among all the agency heads about a purely social gathering do not concern official business of the agency, and would not come within the terms of the subsection. On the other hand, the mere setting of the gathering is not determinative whether a gathering is a meeting for purposes of this subsection. Discussions held in the board room or the Chairman's office are not the only gatherings covered. Conference telephone calls and meetings outside the agency are equally subject to the bill if they discuss agency business and otherwise meetthe require- Approved For Release 2001/09/07 : CIA-RDP77M00144R000800030001-3 Approved For Release 2001/09/01 CIA-RDP77MOO144R000800030001-3 ments of this subsection. 'The test is what the discussion involves, not where or how it is conducted. The reference to the number of individual agency members required to take action means a quorum. In some cases this may mean a simple majority. In other cases, such as a hearing or a meeting conducted by agency members on behalf of the agency, it may be less than a majority of the agency, and as few as two agency members. In three- member agencies, two members will constitute a quorum. This situation will require special sensitivity and judgment. It is not the intent of the bill to prevent any two agency members, regardles of agency size, from engaging in informal background discussions which clarify issues and expose varying views. When two members are less than ay quorum, such discussions would not in any event come under the section's open meeting requirements. When two members constitute a quorum. however, the. agency must be careful not to cross over the line and engage in discussions which effectively predetermine official actions. Members of such agencies must use their judgment in these situations, again with the awareness that this bill carries a presumption of openness. Their discussions should remain informal and prelimi- nary, to avoid the open meeting requirement. EFFECT OF SUBSECTION 201(a) Any meeting falling outside the definition in subsection (a) is not subject to any of the other provisions of the bill. If a meeting does come within the terms of section 201(a) it must be open to the public unless it involves matters described in subsection (b). Except as other- wise provided in the bill, the agency must provide the public with certain information about the meeting, whether or not it is open to the public, and keep a verbatim record of meetings closed to the public unless they involve cases of adjudication. These requirements are de- scribed elsewhere in the section. When a meeting must be open, the agency should make arrange- ments for a room large enough to accommodate a reasonable number of persons interested in attending. Holding a meeting in a small room, thereby denying access to most of the public, would violate this section and be contrary to its clear intent. Nothing in subsection (a) requires an agency to permit the public to actively participate in the meeting. Other statutes and agency regulations and policies continue to govern such participation. Sec- tion 201 (a) only gives the public the right to attend meetings, to listen and to observe. Section 201(b). The requirements of section 201 (a) establish a pre- sumption in favor of open meetings. Subsection (b) allows an agency to close a meeting tinder certain circumstances, but these are exceptions to the underlying rule of openness. Agencies wishing to close a par- ticular meeting will have the burden of justifying their actions. This approach reflects the philosophy of the bill that most government business can and should be conducted in the public eye. Workable limitations on openness are provided, but this section assures that openness is no longer to be conceived as an exception to the rule of secrecy. Approved For Release 2001/09/07 : CIA-RDP77M00144R000800030001-3 Approved For Release 2001/09/07 : CIA-RDP77M00144R000800030001-3. 20 I Subsection (b) establishes 10 grounds on which an agency may vote to close meetings or portions of meetings to the public despite the rule of openness established by subsection (a). These exemptions apply equally to agency subdivisions authorized to take agency action. Closing a meeting on these grounds is permissive, not mandatory. The agency should not automatically close a meeting be- cause it falls within an exception. The phrase "Except where the agency finds that the public interest requires otherwise," emphasizes that an agency may still decide that the public good achieved by open- ing the meeting outweighs the advantages to be gained by closing it. In addition to closing a meeting, an agency may, on the same 10 grounds, withhold information about the meeting otherwise required by subsections (c) and (d) to be disclosed.. For example, an agency need not disclose the subject matter of a closed meeting, or supply a list of those persons attending the meeting, and their affiliation, if that would disclose the very information that the meeting itself was closed to protect. As with sections 101, 102, and 104, this section provides specific exemptions rather than grants of broad, discretionary authority to agencies to close their meetings. This is in accordance with the bill's policy that most meetings should be open, and closed meetings an ex- ception. These exemptions should not be used to circumvent the spirit of openness which underlies this legislation. The 10 exemptions apply when the agency "properly" determines that a closed meeting is appropriate. Improper determinations are sub- ject to enforcement proceedings detailed in subsections (g) and (h). In making its determination, the agency's must fairly conclude that the meeting "can reasonably be expected' to fall within one of the 10 exemptions. Thus an agency wishing to close a meeting need not meet the test of absolute certainty, for it might not be possible to know exactly what information the meeting will disclose. Rather, there must only be a reasonable likelihood, based on the nature of the issue, past experience with the similar discussions, and the expressed intent of agency members to raise a sensitive matter. Where the possibility that a meeting will involve exempt matters is fairly remote, the meeting should begin as an open one. If the discussion does become sensitive, the agency may always vote to close the session. The 10 grounds provided in the act for closing a meeting are as follows : Section 201 (b) (1). This paragraph covers meetings which'disclose information specifically required to be kept secret by an Executive order in the interests of national defense or foreign policy, and which is properly classified pursuant to such Executive order. ,The wording exactly follows the 1974 amendment to the Freedom of Information Act, 5 U.S.C. section 552(b) (1). The phrases "national defense" and "foreign policy" should be given the same meaning as in the Freedom of Information Act. Subsection (e) requires an agency to keep a transcript. or electronic recording of a meeting closed to the public, and subsection (g) allows a court to examine the record or other information before ordering its release or opening a meeting. A court should therefore be able to determine whether an agency is acting properly if it relies on this pro Approved For Release 2001/09/07 : CIA-RDP77M00144R000800030001-3 Approved For Release 2001/09/07 : CIA-RDP77M00144R000800030001-3 21 vision to close a meeting to the public. A holding analogous to that in E.Y.A. v. Mink, et al., 410 U.S. 73 (1973), in which the court de- clined to permit in camera inspection of classified documents, would be contrary to the intent of this exemption. It is expected that courts will at their discretion examine documents in camera to determine the pro- priety of the agency's action. Such examination need not, be automatic, but in many situations will definitely be necessary. Before ordering in camera inspection, the court may at its discretion allow the Govern- ment the opportunity to establish by means of testimony or detailed affidavits submitted by a head of the agency that the meeting, or in- formation related to it, is clearly exempt from disclosure under this section. Once an agency properly classifies information relating to national defense or foreign policy pursuant to an Executive order, another agency cannot legally declassify it. If an agency subject to this section receives information properly classified by another agency, and public disclosure of the information is prohibited, the meeting must be closed. The agency would have no discretion, for the law provides that in such a case the agency must accept on its face the classification placed on the material by the originating agency. At the same time., the agency may request the classifying agency to review the classification and re- move the restrictions prior to the meeting. Section 201(b) (2). This paragraph exempts meetings which con- cern solely the agency's own internal personnel rules and practices. The purposes of this clause are to protect the privacy of staff members and to facilitate the agency's internal administration. It is not intended to cover an agency's discussion of personnel matters relating to any other agency, or to individuals working for private employers. This word- ing parallels the Freedom of Information Act, 5 U.S.C. 552(b) (2). This exemption does not include directions to agency personnel con- cerning their responsibility vis a vis the public, such as manuals ex- plainingjob functions. It includes only internal management matters. In some cases it will be appropriate for an agency to open a meet- ing concerning matters of general public interest even though it involves internal personnel rules and practices. For example, an agency might open a discussion of the propriety of an employee's actions dis- closing agency information to the public. Section 201(b) (3). This paragraph applies to meetings which dis- close information of a personal nature where disclosure would con- stitute a clearly unwarranted invasion of the personal privacy of an individual. This may include a discussion of an individual's drinking habits or health, or review of a grant application which requires as- sessing an individual's professional competence. Or it may include reviewing an individual's finances to determine his eligibility for financial aid. It is not intended that agencies will close all meetings that involve personal information about individuals. Such restrictiveness is not in accord with the policy of either the bill or this exemption. Moreover, public officials and private individuals should be subject to different considerations. For instance, a meeting might be closed under this paragraph if it concerned the competence of the president of an entity regulated by the agency. Yet if the discussion centered on the alleged Approved For Release 2001/09/07 : CIA-RDP77M00144R000800030001-3 Approved For Release 2001/09/07 : CIA-RDP77M00144R000800030001-3 22 incompetence with which a Government official has carried out his duties it might well be appropriate to keep the meeting open, since in that case the public has a special interest in knowing how well agency employees are carrying out their public responsibilities. This para- graph must not be used by an agency to shield itself from political controversy involving the agency and its employees about which the public should be informed. The main purpose of this exemption is to protect an individual's privacy. It would clearly not be appropriate, therefore, to invoke this paragraph when the individual involved prefers the meeting to be open. The procedures an individual may follow if he wishes a meeting to be closed under this paragraph is detailed in subsection 201 (c) (1). Section 201(b) (4). This paragraph covers meetings which accuse an individual or corporation of a crime, or formally censure such person. The term "formally censuring any person" includes formal reprimands. An agency may discuss a company's alleged crimes, such as the submission of fraudulent documents, and consider whether to refer the case to the Department of Justice for prosecution. An agency regulating financial or security matters may wish to censure a firm for failing to live up to its professional responsibilities. or an agency may consider whether to formally censure an attorney for his conduct in an agency proceeding. Opening to the public agency discussions of such matters could irreparably harm the person's reputation. If the agency decides not to accuse the person of a crime, or not to censure him, the harm done to the person's reputation by the open meeting could be very unfair. This paragraph insures that where serious charges of this nature are formally discussed by the agency, the agency has the latitude to close the meeting, even if the discussion does not come within the precise terms of paragraph (5), governing investigatory files, or any other part of subsection (b). The provision should not be interpreted as grounds for closing every meeting placing a company in a bad light. To be applicable, the meeting must consider formal agency action accusing a person of a crime or formally censuring a person. Section 201 (b) (5). This paragraph applies ton meetings which dis- close information from investigatory records compiled for civil or criminal law enforcement purposes. A meeting could be closed, how- ever, only to the extent that disclosure of records would interfere with enforcement proceedings; deprive a person of a right to a fair trial or an impartial adjudication; constitute an unwarranted invasion of per- sonal privacy; disclose the identity of a confidential source; disclose confidential information furnished only by a confidential source in the course of a criminal or national security intelligence investigation: dis- close investigative techniques and procedures; or endanger the life or physical safety of law enforcement personnel. This exemption is the same as the comparable provision in the Freedom of Information Act, as amended in 1974, 5 U.S.C_. section 552(b) (7), and should be inter- preted in a manner consistent with that act. It is included in recog- nition of the fact that premature public disclosure of certain matters concerning an investigation could jeopardize these investigations and hinder the ability of the agencies to fulfill their statutory duties. Approved For Release 2001/09/07 : CIA-RDP77M00144R000800030001-3 Approved For Release 2001/09/07 : CIA-RDP77M00144R000800030001-3 33 The investigatory records to be disclosed must have been "compiled for law enforcement purposes," involving specific persons. General rec- ords such as annual surveys are not included in this exemption. The provision would be applicable to certain discussions of the legal strategy and tactics to be used in a specific investigation, such as the issuance of a subpena where public knowledge of the discussion might lead to the destruction of documents. It would apply to a discussion identifying it particular individual as a confidential source who sup- plied specific information. It would not, however, apply to the information supplied by the confidential source in a civil law enforce- ment investigation which does not disclose the identity of the source. If agency consideration of the matter has advanced to the point where it specifically discusses the initiation, conduct, or disposition of a par- ticular case of adjudication, paragraph (9), rather than this para- graph, will apply. As in the case of the rest of subsection (b), an agency may not be held to a showing of obsolute certainty before invoking this provision. The meeting may be closed if the agency properly determines, on the basis of its general experience and knowl- edge of the particular facts, that the meeting can reasonably be ex- pected to fall within the terms of the paragraph. Section 001(b) (6). This paragraph applies to meetings which dis- close trade secrets or financial or commercial information obtained from any person where such trade secrets or other information could not be obtained by the agency without a pledge of confidentiality, or where such information must be withheld from the public in order to prevent substantial injury to the competitive position of the person to whom such information relates. The trade secret exemption draws on current case law and com- mentary regarding exemptions for trade secrets and commercial or financial information found in other laws, especially the Freedom of Information Act, 5 U.S.C. section 552(b) (4). Rather than repeat the original wording contained in the Freedom of Information Act, para- graph (6) reflects as clearly as possible the present direction of the law. Paragraph (b) (6) involves three tests. First, the information must be either (a) a trade secret, or (b) financial or commercial in nature. For example information relating to oil or gas reserves collected by an oil company, a technological invention of commercial value, and the level of a company's anticipated price rises, would all be covered by this paragraph. Second, the information, whether a trade secret or financial or com- mercial information, must have been directly or indirectly obtained from a person as defined by section 3 of the bill. It includes informa- tion one agency has obtained from a person and in turn provided to another agency. The third test is posed in the alternative. The first criteria is satis- fied if there was no legal way for the agency to obtain the information, whether by voluntary or involuntary means without a pledge of con- fidentialitv. This requirement is not satisfied if an agency could have subpenaed the information, or if a statute required the person to fur- nish it to the agency, whether or not the agency actually subpenaed the information. Pledges of confidentiality do not satisfy this clause Approved For Release 2001/09/07 : CIA-RDP77M00144R000800030001-3 Approved For Release 2001/09/07 : CIA-RDP77M00144R000800030001-3 where the agency could have gone to court and obtained the informa- tion without giving such a pledge. The purpose of this test is to avoid impairing the Government's ability to obtain necessary information, where governmental access to information must depend on the volun- tary cooperation of private individuals and businesses. The third test may also be satisfied, and a meeting closed, if the information must be kept secret in order to prevent substantial injury to the competitive position of the person to whom the information re- lates. This may include information an agency can obtain involuntarily from a person. The "competitive position" affected by public disclosure must be that of the person "to whom such information relates." It dons not apply to persons who can only make a general demonstration of commercial interest in the information to be disclosed. On the other hand, it does include a person possessing a trade secret which he has not yet used, but which he is likely to put to commercial use in the future. Section 201(b) (7). This paragraph applies in certain specific in- stances where premature disclosure of information would destroy an agency's ability to perform its functions effectively. Subparagraph (A) applies to such agencies as the Federal Reserve Board, the Secu- rities and Exchange Commission, the Federal Deposit Insurance Cor- poration, and similar agencies that regulate currencies, securities, commodities, or financial institions. The term "financial institutions" is intended to include banks, savings and loan associations, credit unions, brokers and dealers in securities or commodities, exchanges dealing in securities or commodities, such as the New York Stock Exchange, investment companies, investment advisers, self-reg- ulatory organizations subject to 15 U.S.C. ? 78s, and institutional managers as defined in 15 U.S.C. 78m(f). These agencies often dis- cuss sensitive financial matters. When premature discussion of issues by these agencies would either (i) lead to serious financial speculation, or (ii) seriously endanger the stability of a financial institution, the meeting may be closed. A Federal Reserve Board discussion of the pre- carious financial state of a member bank could be closed under this provision. A securities and Exchange Commission discussion whether to suspend trading in a certain stock would also be included. Certain extremely sensitive financial actions cannot be disclosed until several months after they are taken. The wording therefore applies to an agency discussion of action already taken, as well as to a proposed action. This exemption, as all others, is prefaced by the phrased "can reasonably be expected" to disclose certain information. An agency seeking to close a meeting would therefore not have to conclude to an absolutue certainty that serious speculation would occur. Subparagraph (I3) applies to actions by any agency when prema- ture disclosure of its plans would seriously frustrate effective imple- mentation of its actions. An example would include discussion of the strategy an agency will follow in collective bargaining with its em- ployees. Public disclosure might make it impossible to reach an agree- ment. Or an agency may consider imposing an enihergo on the foreign shipment of certain goods. If this were publicly known, all the goods might be exported before the agency had time to act, and the effective- ness of the proposed action destroyed. The discussion could involve Approved For Release 2001/09/07 : CIA-RDP77M00144R000800030001-3 Approved For Release 2001/09/075 IA-RDP77M00144R000800030001-3 agency approval of a proposed merger, if premature public disclosure of the proposal would make it impossible for the two sides to reach an' agreement. Subparagraph (C) applies to premature disclosure of an agency's plans to purchase a particular piece of land for itself. Public knowl- edge of the proposed action might drive up the price of the parcel under consideration, or lead to considerable land speculation. The last sentence in paragraph (7) provides that an agency may not close a meeting pursuant to this paragraph if it has already pub- licly announced the content or nature of the action under considera- tion. Since the paragraph only applies when an agency feels it must act in secret, it would be contrary to the intent of this provision for an agency to rely on it when the public is already aware of the actions being considered, or where the Administrative Procedure Act or other statute requires the agency to publicly announce its proposal before taking final action. Thus, if an agency has already announced a pro- posed rule, or generally disclosed the nature or content of its proposed action, or if it must do so under the requirements of the Administra- tive Procedure Act before finally adopting the rule, discussion of the proposal to issue a rule, or take other action, could not be closed under this paragraph. Discussion of a complaint that has already been issued, or which must be issued, before final agency action is taken may be closed under other paragraphs, but not this one. The proviso in the last sentence of the paragraph will be applicable even if an agency has not already disclosed the exact wording of the proposal, or dis- closed every detail of a proposed action. If the agency has already disclosed enough of the content or nature of the rule to give the public an idea of what the agency is proposing, it may not invoke para- graph (7). The words "serious" and "seriously" qualify both subparagraphs (A) and (B). Without such a qualification, the provision could be read as endorsing a closed meeting even though, for example, the amount of speculation it might produce would be insignificant, or implementation of a proposed action would only be minimally "frus- trated" by an open meeting. "Serious" means that there must be a balancing test, just as elsewhere in this bill, to determine how the public interest is best served. Section 001(b) (8). This paragraph applies to meetings which dis- close information contained in or relating to examination, operating, or condition reports on financial institutions. These reports are pre- pared by or for the use of such banking agencies as the Federal Re- serve Board, Federal Deposit Insurance Corporation, and the Federal Home Loan Bank Board. This provision is identical to exemption (b) (8) of the Freedom of Information Act and should be interpreted in the same way. Section 001(b) (9). This paragraph applies to meetings concerning the agency's participation, or preparation to participate, in a civil action in Federal or State court, or the initiation, conduct, or disposi- tion of agency adjudication governed by section 554 of title 5, United States Code, or similar provision. The first portion of the paragraph applies to an agency discussion of its participation in a civil action in Federal or State court. This Approved For Release 2001/09/07 : CIA-RDP77M00144R000800030001-3 Approved For Release 2001/09/07 IA-RDP77M00144R000800030001-3 includes discussions concerning whether the agency should either bring an action itself or ask the Department of Justice to bring it. The-second portion of the paragraph refers to formal adjudications conducted by the agency itself. The paragraph refers to an adjudication "otherwise involving a determination on the record after opportunity for a hear- ing" in order to include formal agency adjudications on the record not governed by section 554 of the Administrative Procedure Act. The paragraph only covers proceedings which follow sections 556 and 557 of the Administrative Procedure Act, or similar procedures. The committee felt that it would be inappropriate for several reasons to require agencies to open meetings discussing specific cases of adjudi- cation. Public disclosure of an agency's legal strategy in a case before the agency or in the courts could make it impossible to litigate suc- cessfully the action. Public discussions of the guilt or innocence of a particular individual in agency adjudication could unfairly injure a person's reputation, or make it impossible for him to receive a fair or impartial hearing. Adjudications of the type covered by this para- graph must already be decided solely on the information in the record. Unlike other cases, the entire record on which the agency must make its decision in adjudication is open to inspection by any member of the public. Section 202 of the bill, prohibiting ex parte contacts, will help insure that such decisions are in fact based solely on the record. Finally, many aspects of the adjudicative process, such as the trial before an administrative law judge or appellate arguments before the commission are generally open now to the public. To fall within the provisions of this para