GOVERNMENT IN THE SUNSHINE ACT

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP77M00144R000800030001-3
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 64
• Document Creation Date: December 9, 2016
• Document Release Date: September 2, 2001
• Sequence Number: 1
• Publication Date: July 31, 1975
• Content Type: OPEN

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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
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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
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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
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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
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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
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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-
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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
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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
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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.)
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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
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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
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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
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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
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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
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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
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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
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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.
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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;
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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,
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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.
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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-
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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.
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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
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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
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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.
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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
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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
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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
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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