GOVERNMENT IN THE SUNSHINE ACT

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP77M00144R000800030002-2
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 30
• Document Creation Date: December 9, 2016
• Document Release Date: September 2, 2001
• Sequence Number: 2
• Publication Date: August 27, 1976
• Content Type: OPEN

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94TH CONGRESS 1 SENATE E ORT
2d Session s No-,'04 1178
GOVERNMENT IN THE SUNSHINE ACT
AUGUST 27, 1976.-Ordered to be printed
Mr. CmLES, from the committee of conference, submitted the
following
CONFERENCE REPORT
[To accompany S. 5]
The committee of conference on the disagreeing votes of the two
Houses on the amendment of the House to the bill (S. 5) to provide
that meetings of Government agencies shall be open to the public,
and for other purposes, having met, after full and free conference,
have agreed to recommend and do recommend to their respective
Houses as follows:
That the Senate recede from its disagreement to the amendment
of In the lieu of the matter proposed to bet inserted by the House follows: insert the following :
That this Act may be cited as the "Government in the Sunshine Act".
DECLARATION OF POLICY.
SEC. 2. It is hereby declared to be the policy of the United States that
the public is entitled to the fullest practicable information regarding the
decasionmaking processes of the Federal Government. It is the purpose of
this Act to provide the public with such information while protecting
the rights of individuals and the ability of the Government to carry out its
responsibilities.
OPEN MEETINGS
SEC. 3. (a) Title 5, United States Code, is amended by adding after
section 552a the following new section:
552b. Open meetings
"(a) For purposes of this section-
" (1) the term 'agency' means any agency, as defined in section 552
(e) of this title, headed by a collegial body composed of two or more
individual members, a majority of whom are appointed to such
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position by the President with the advice and consent of the Senate,
and any subdivision thereof authorized to act an behalf of the agency;
"(s) the term `meeting' means the deliberations of at least the
number of individual agency members required to take action on behalf
of the agency where such deliberations determine or result in the joint
conduct or disposition of official agency business, but does not include
deliberations required or permitted by subsection (d) or (e); and
"(3) the term `member' means an individual who belongs to a col-
legial body heading an agency.
(b) Members shall not jointly conduct or dispose of agency business
other than in accordance with, this section. Except as provided in sub-
section (c), every portion of every meeting of an agency shall be open to
public observation.
"(c) Except in a case where the agency finds that the public interest
requires otherwise, the second sentence of subsection (b) shall not apply
to any portion of an agency meeting, and the requirements of subsections
(d) and (e) shall not apply to any information pertaining to such meeting
otherwise required by this section to be disclosed to the public, where the
agency properly determines that such portion or portions of its meeting or
the disclosure of such information is likely to-
(1) disclose matters that are (A) specifically authorized under
criteria established by an Executive order to be kept secret in the
interests of national defense or foreign policy and (B) in fact prop-
erly classified pursuant to such Executive order;
"(2) relate solely to the internal personnel rules and practices of an
agency;
"(3) disclose matters specifically exempted from disclosure by
statute (other than section 65 of this title), provided that such
statute (A) requires that the matters be withheld from the public in,
such a manner. as to leave no discretion on the issue, or (B) establishes
particular criteria for withholding or refers to particular types of
matters to be withheld;
"(4) disclose trade secrets and commercial or financial information
obtained from a person and privileged or confidential;
"(5) involve accusing any person of a crime, or , formally censuring
any erson;
disclose information of a personal nature where disclosure
would constitute a clearly unwarranted invasion of personal privacy;
"(7) disclose investigatory records compiled for law enforcement
purposes or information which if written would be contained in such
records, tut only to the extent that the production of such records or
information would (A) interfere with enforcement proceedings, (B)
derive a person of a right to a fair trial or an impartial adjudication,
(C) constitute an unwarranted invasion of personal privacy, (D)
disclose the identity of a confidential source and, in the case of a
record compiled by a criminal law enforcement authority in the
course of a criminal investigation, or by an agency conducting a
lawful national security intelligence investigation, confidential
information furnished only by the confidential source, (E) disclose
investigative techniques and procedures, or (F) endanger the life or
physical safety of law enforcement personnel;
"(8) disclose information contained in or related to examination,
operating, or condition reports prepared by, on behalf of, or for the
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use of an agency responsible for the regulation or supervision of
financial institutions;
"(9) disclose information the premature disclosure of which
would-
"(A) in the case of an agency which regulates currencies,
securities, commodities, or financial institutions, be likely to
(i) lead to significant financial speculation in currencies,
securities, or commodities, or (ii) significantly. endanger the
stability of any financial institution; or
"(B) in the case of any agency, be likely to significantly
frustrate implementation of a proposed agency action,
except that subparagraph (B) shall not apply in any instance where
the agency has already disclosed to the public the content or nature
of its proposed action, or where the agency is required by law to
make such disclosure on its own initiative prior to taking final
agency action on such proposal; or
"(10) specifically concern the agency's issuance of a subpena,
or the agency's participation in a civil action or proceeding, an
action in a foreign court or international tribunal, or an arbitration,
or the initiation, conduct, or disposition by the agency of a particular
case of formal agency adjudication pursuant to the procedures in
section 554 of this title or otherwise involving a determination on
the record after opportunity for a hearing.
"(d) (1) Action under subsection (c) shall be taken only when a
majority of the entire membership of the agency (as defined in subsection
(a) (1)) votes to take such action. A separate vote of the agency members
shall be taken with respect to each agency meeting a portion or portions of
which are proposed to be closed to the public pursuant to subsection (c),
or with respect to any information which is proposed to be withheld under
subsection (c). A single vote may be taken with respect to a series of
meetings, a portion or portions of which are proposed to be closed to the
public, or with respect to any information concerning such series of
meetings, so long as each meeting in such series involves the same particular
matters and is scheduled to be held no more than thirty days after the
initial meeting in such series. The vote of each agency member participating
in such vote shall be recorded and no proxies shall be allowed.-
"(2) Whenever any person whose interests may be directly affected
by a portion of a meeting requests that the agency close such portion to the
public for any of the reasons referred to in paragraph (5), (6), or (7) of
subsection (c), the agency, upon request of any one of its members, shall
vote by recorded vote whether to close such meeting.
"(S) Within one day of any vote taken pursuant to paragraph (1) or
(2), the agency shall make publicly available a written copy of such vote
reflecting the vote of each member on the question. If a portion of a meeting
is to be closed to the public, the agency shall, within one day of the vote
taken pursuant to paragraph (1) or (2) of this subsection, make publicly
available a full written explanation of its action closing the portion to-
gether with a list of all persons expected to attend the meeting and their
affiliation.
be
"(4) Any agency, a majority of whose meetings may properly
closed to the public pursuant to paragraph (4), (8), (9) (A), or (10) of
subsection (c), or any combination thereof, may provide by regulation for
the closing of such meetings or portions thereof in the event that a majority
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of the members of the agency votes by recorded vote at the beginning of
such meeting, or portion thereof, to close the exempt portion or portions
of the meeting, and a copy of such vote, reflecting the vote of each member
on the question, is made available to the public. The provisions of para-
graphs (1), (2), and (3) of this subsection and subsection (e) shall. not
apply to any portion of a meeting to which such regulations apply: Pro-
vided, That the agency shall, except to the extent that such information is
exempt from disclosure under the provisions of subsection (c), provide the
public with public announcement of the time, place, and subject matter of
the meeting and of each portion thereof at the earliest practicable time.
"(e)(1) In the case of each meeting, the agency shall make public
announcement, at least one week before the meeting, of the time, place, and
subject matter of the meeting, whether it is to be open or closed to the public,
and the name and phone number of the official designated by the agency to
respond to requests for information about the meeting. Such announce-
ment shall be made unless a majority of the members of the agency deter-
mines by a recorded vote that agency business requires that such meeting
be called at an earlier date, in which case the agency shall make public
announcement of the time, place, and subject matter of such meeting, and
whether open or closed to the public, at the earliest practicable time.
"(2) The time or place of a meeting may be changed following the public
announcement required by paragraph (1) only if the agency publicly
announces such change at the earliest practicable time. The subject matter
of a meeting, or the determination of the agency to open or close a meeting,
or portion of a meeting, to the public, may be changed following the public
announcement required by this subsection only if (A) a majority of the
entire membership of the agency determines by a recorded vote that agency
business so requires and that no earlier announcement of the change was
possible, and (B) the agency publicly announces such change and the vote
of each member upon such change at the earliest practicable time.
"(3) Immediately following each public announcement required by this
subsection, notice of the time, place, and subject matter of a meeting,
whether the meeting is open or closed, any change in one of the preceding,
and the name and phone number of the official designated by the agency
to respond to requests for information about the meeting, shall also be
submitted for publication in the Federal Register.
(f) (1) F or every meeting closed pursuant to paragraphs (1) through
(10) of subsection (c), the General Counsel or chief legal officer of the
agency shall publicly certify that, in his or her opinion, the meeting may be
closed to the public and shall state each relevant exemptive provision. A
coy of such certification, together with a statement from the presiding
officer of the meeting setting forth the time and place of the meeting, and the
persons resent, shall be retained by the agency. The agency shall maintain
a complete transcript or electronic recording adequate to record fully the
proceedings of each meeting, or portion of a meeting, closed to the public,
except that in the case of a meeting, or portion of a meeting, closed to the.
public pursuant to paragraph (8), (9) (A), or (10) of subsection (c), the
agency shall maintain either such a transcript or recording, or a set of
minutes. Such minutes shall fully and clearly describe all matters dis-
cussed and shall provide a full and accurate summary of any actions
taken, and the reasons therefor, including a description of each of the
views expressed on any item and the record of any rolleall vote (reflecting
the vote of each member on the question). All documents considered in con-
nection with any action shall be identified in such minutes.
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"(2) The agency shall make promptly available to the public, in a place
easily accessible to the public, the transcript, electronic recording, or
minutes (as required by paragraph (1)) of the discussion of any item on
the agenda, or of any item of the testimony of any witness received at the
meeting, except for such item or items of such discussion or testimony as
the agency determines to contain information which may be withheld under
subsection (c). Copies of such transcript, or minutes, or a transcription
of such recording disclosing the identity of each speaker, shall be furnished
to any person at the actual cost of duplication or transcription. The
agency shall maintain a complete verbatim copy of the transcript, a
complete copy of the minutes, or a complete electronic recording of each
meeting, or portion of a meeting, closed to the public, for a period of at
least two years after such meeting, or until one year after the conclusion
of any agency proceeding with respect to which the meeting or portion
was held, whichever occurs later.
"(g) Each agency subject to the requirements of this section shall,
within 180 days after the date of enactment of this section, following con-
sultation with the Office of the Chairman of the Administrative Conference
of the United States and published notice in the Federal Register of at
least thirty days and opportunity for written comment by any persons
promulgate regulations to implement the requirements of subsections (b)
through (f) of this section. Any person may bring a proceeding in the
United States District Court for the District of Columbia to require an
agency to promulgate such regulations if such agency has not promulgated
such regulations within the time period specified herein. Subject to any
limitations of time provided by law, any person may bring a proceeding in
the United States Court of Appeals for the District of Columbia to set aside
agency regulations issued pursuant to this subsection that are senot in
ction
accord with the requirements of subsections (b) through (f) of this
and to require the promulgation of regulations that are in accord with such
subsections.
"(h) (1) The district courts of the United States shall have jurisdiction to
enforce the requirements of subsections (b) through (f) of this section by
declaratory judgment, injunctive relief, or other relief as may be appro-
priate. Such actions may be brought by any person against an agency prior
to, or within sixty days after, the meeting out of which the violation of this
section arises, except that if public announcement of such meeting is not
initially provided by the agency in accordance with the requirements of this
section, such action may be instituted pursuant to this section at any time
prior to sixty days after any public announcement of such meeting. Such
actions may be brought in the district court of the United States for the
district in which the agency meeting is held or in which the agency in
question has its headquarters, or in the District Court for the District of
Columbia. In such actions a defendant shall serve his answer within thirty
days after the service of the complaint. The burden is on the defendant to
sustain his action. In deciding such cases the court may examine in camera
any portion of the transcript, electronic recording, or minutes of a meeting
closed to the public, and may take such additional evidence as it deems
necessary. The court, having due regard for orderly administration such
the public interest, as well as the interests of the parties, may grant
equitable relief as it deems appropriate, including granting an injunction
against future violation,, of this section or ordering the agency to make
available to the public such portion of the transcript, recording, or minutes
of a meeting as is not authorized to be withheld under subsection (c) of
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"(2) Any Federal court otherwise authorized by law to review agency
action may, at the application of any person properly participating in
the proceeding pursuant to other applicable law, inquire into violations
by the agency of the requirements of this section and afford such relief
as it deems appropriate. Nothing in this section authorizes any Federal
court having jurisdiction solely on the basis of pparagraph (1) to set
aside, enjoin, or invalidate any agency action (other than an action to
close a meeting or to withhold information under this section) taken or
discussed at an agency meeting out of which the violation of this section
arose.
"(i) The court may assess against any party reasonable-attorney fees and
other litigation costs reasonably incurred by any other party who substan-
tially prevails in any action brought in accordance with the provisions of
subsection (g) or (h) of this section, except that costs may be assessed
against the plaintiff only where the court finds that the suit was initiated by
the plaintiff primarily for frivolous or dilatory purposes. In the case of
assessment of costs against an agency, the costs may be assessed by the
court against the United States.
"(j) Each agency subject to the requirements of this section shall annu-
ally report to Congress regarding its compliance with such requirements,
including a tabulation of the total number of agency meetings open to the
public, the total number of meetings closed to the public, the reasons for
closing such meetings, and a description of any litigation brought against
the agency under this section, including any costs assessed against the
agency in such litigation (whether or not paid by the agency).
(k) Nothing herein expands or limits the present rights of any person
under section 552 of this title, except that the exemptions set forth in
subsection (c) of this section shall govern in the case of any request made
pursuant to section 552 to copy or inspect the transcripts, recordings, or
minutes described in subsection (f) of this section. The requirements of
chapter 38 of title 44, United States Code, shall not apply to the tran-
scripts, recordings, and minutes described in subsection (f) of this section.
"(l) This section does not constitute authority to withhold any informa-
tion from Congress, and does not authorize the closing of any agency
meeting or portion thereof required by any other provision of law to be
open.
"(m) Nothing in this section authorizes any agency to withholdfrom any
individual any record, including transcripts, recordings, or minutes
required by this section, which is otherwise accessible to such individual
under section 552a of this title.".
(b) The chapter analysis of chapter 5 of title 5, United States Code, is
amended by inserting:
"555b. Open meetings."
immediately below:
"552a. Records about individuals.".
EX PARTE COMMUNICATIONS
SEC. 4. (a) Section 557 of title 5, United States Code, is amended by
adding at the end thereof the following new subsection:
"(d) (1) In any agency proceeding which is subject to subsection (a) of
this section, except to the extent required for the disposition of ex parte
matters as authorized by law-
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"(A) no interested person outside the agency shall make or
knowingly cause to be made to any member of the body comprising
the agency, administrative law judge, or other employee who is or
may reasonably be expected to be involved in the decisional process of
the proceeding, an ex party communication relevant to the merits of the
proceeding;
"(B) no member of the body comprising the agency, administrative
law judge, or other employee who is or may reasonably be expected
to be involved in the decisional process of the proceeding, shall make
or knowingly cause to be made to any interested person outside the
agency an ex party communication relevant to the merits of the
proceeding;
"(C) a member of the body comprising the agency, administrative
law judge, or other employee who is or may reasonably be expected
to be involved in the decisional process of such proceeding who receives,
or who makes or knowingly causes to be made, a communication pro-
hibited by this subsection shall place on the public record of the
proceeding:
"(i) all such written communiea ions;
"(ii) memoranda stating the substance of all such oral com-
munications; and
"(iii) all written responses, and memoranda stating the sub-
stance of all oral responses, to the materials described in clauses
(i) and (ii) of this subparagraph;
"(D) upon receipt of a communication knowingly made or know-
ingly caused to be made by a party. in violation of this subsection,
the agency, administrative law judge, or other employee presiding at
the hearing may, to the extent consistent with the interests of justice
and the policy of the underlying statutes, require the party to show
cause why his claim or interest in the proceeding should not be
dismissed, denied, disregarded, or otherwise adversely affected on
account of such violation; and
"(E) the prohibitions of this subsection shall apply beginning at
such time as the agency may designate, but in no case shall they begin
to apply later than the time at which a proceeding is noticed for
hearing unless the person responsible for the communication has
knowledge that it will be noticed, in which case the prohibitions shall
apply beginning at the time of his acquisition of such knowledge.
"(2) This subsection does not constitute authority to withhold informa-
tion from Congress.".
(b) Section 551 of title 5, United States Code, is amended-
(1) by striking out "and" at the end of paragraph (12);
(2) by striking out the "act." at the end of paragraph (13) and
inserting in lieu thereof "act; and"; and
(3) by adding at the end thereof the following new paragraph:
"(14) `ex party communication' means an oral or written communi-
cation not on the public record with respect to which reasonable prior
notice to all parties is not given, but it shall not include requests
for status reports on any matter or proceeding covered by this sub-
chapter.".
(c) Section 556(d) of title 5, United States Code, is amended by inserting
between the third and fourth sentences thereof the following new sentence:
"The agency may, to the extent consistent with the interests of justice and
the policy of the underlying statutes administered by the agency, consider
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a violation of section 557(d) of this title sufficient grounds for a decision
adverse to a party who has knowingly committed such violation or know-
ingly caused such violation to occur.".
CONFORMING AMENDMENTS
SEC. 5. (a) Section 410(b) (1) of title 39, United States Code, is amended
by inserting after "Section 552 (public information)," the words "section
552a (records about individuals), section 552b (open meetings),".
(b) Section 552(b) (3) of title 5, United States Code, is amended to read
as follows:
"(3) specifically exempted from disclosure by statute (other than
section 552b of this title), provided that such statute (A) requires
that the matters be withheld from the ublic in such a manner as to
leave no discretion on the issue, or (B)establishes particular criteria
for withholding or refers to particular types of matters to be withheld;".
(c) Subsection (d) of section 10 of the Federal Advisory Committee Act
is amended by striking out the first sentence and inserting in lieu thereof
the following: "Subsections (a) (1) and (a) (3) of this section shall not
apply to any portion of an advisory committee meeting where the President,
or the head of the agency to which the advisory committee reports, determines
that such portion of such meeting may be closed to the public in accordance
with subsection (c) of section 552b of title 5, United States Code.".
EFFECTIVE DATE
SEC. 6. (a) Except as provided in subsection (b) of this section, the
provisions of this Act shall take effect 180 days after the date of its en-
actment.
(b) Subsection (g) of section 552b of title 5, United States Code as,
added by section 3(a) of this Act, shall take effect upon enactment.
And the House agree to the same.
Aim RIBICOFF,
EDMUND S. MUSKIE,
LEE METCALF,
LAWTON CHILES,
C. H. PERCY,
J. JAVITS,
W. V. ROTH, Jr.,
Managers on the Part of the Senate.
JACK BROOKS,
JOHN E. Moss,
DANTE B. FA,SCELL,
JOHN CONYERS,
BELLA S. ABZUG,
WALTER FLOWERS,
GEORGE E. DANIELSON,
BARBARA JORDAN,
R. L. MAZZOLI,
EDWARD W. PATTERSON,
FRANK HORTON,
PAUL N. MCCLOSKEY, Jr.,
CARLOS J. MOOIUIE:AD,
THOMAS N. KINDNESS,
Managers on the Part of the House.
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JOINT EXPLANATORY STATEMENT OF THE COMMITTEE
OF CONFERENCE
The managers on the part of the House and the Senate at the con-
ference on the disagreeing votes of the two Houses on the amendment
of the House to the bill (S. 5) to provide that meetings of Government
agencies shall be open to the public, and for other purposes, submit the
following joint statement to the House and the Senate in explanation
of the effect of the action agreed upon by the managers and recom-
mended in the accompanying conference report:
The House amendment to the text of the bill struck out all of the
Senate bill after the enacting clause and inserted a substitute text.
The Senate recedes from its disagreement to the amendment of the
House with an amendment which is a complete substitute for the
House amendment, and the House agrees to the same. The differences
among the Senate bill, the House amendment, and the substitute
agreed to in conference are noted below, except for clerical corrections,
conforming changes made necessary by agreements reached by the
conferees, and minor drafting and clarifying changes.
The Senate bill, the House amendment, and the conference sub-
stitute provide that this legislation may be cited as the "Government
in the Sunshine Act".
The Senate bill, the House amendment, and the conference sub-
stitute provide in section 2 that it is the policy of the United States
that the public is entitled to the fullest practicable information
regarding the decisionmaking processes of the Federal Government,
and that it is the purpose of this Act to provide the public with such
information while protecting the rights of individuals and the ability
of the Government to carry out its responsibilities.
Senate bill
The Senate bill did not make its open meeting provisions a part of
title 5, United States Code.
House amendment
The House amendment enacted its open meeting provisions as a
new section 552b of title 5, United States Code.
Conference substitute
The conference substitute is the same as the House amendment.
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Senate bill
Section 3 of the Senate bill defined the term "person" to include an
individual partnership, corporation, association, or public or private
organization other than an agency.
Section 4(a) of the Senate bill made section 4 applicable to the
Federal Election Commission and to any agency, as defined in section
551(1) of title 5, United States Code, where the collegial body com-
prising the agency consists of two or more individual members, at
least a majority of whom are appointed to such position by the
President with the advice and consent of the Senate.
Section 4(a) of the Senate bill also provided that for purposes of
section 4, a meeting means the deliberations of ' at least the number
of individual agency members required to take action on behalf of the
agency where such deliberations concern the joint conduct or
disposition of official agency business.
The Sen Appro
veu 9'2 bill-di
`1d6ll/ tf 7'I6'D- 0 0002-2
House amendment
The House amendment, subsection (a) of the proposed new section
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Railroad Passenger Corporation (Amtrak)). are included' within
the definition of agency.
3. The substitute defines the term "meeting" as the delibera-
tions of at least the number of individual agency members
required to take action on behalf of the agency where such de-
liberations determine or result in the joint conduct or dispo-
sition of agency business, but not including deliberations to take
action to open or close a meeting, or to release or withhold in-
formation under subsection (d) or (e) of this section. This is the
Senate definition, as explained in the Senate report, except that
the word "concern" is replaced by the words "determine or result
in". This definition will include conference telephone calls if
they involve the requisite number of members and otherwise
come within the definition.
PROHIBITION ON CONDUCT OF BUSINESS OTHER THAN AS PROVIDED IN
Senate bill
The Senate bill contained no express prohibition on the conduct of
agency business other than as provided in the bill.
House amendment
Section (b) (1) of new section 552b, as included in the House amend-
ment, provided that members, as described in subsection (a) (2),
shall not jointly conduct or dispose of agency business without com-
plying with subsections (b) through (g).
Conference substitute
The conference substitute provides that members shall not jointly
conduct or dispose of agency business in a meeting other than in
accordance with new section 552b. This prohibition does not prevent
agency members from considering individually business that is
circulated to them sequentially in writing.
Senate bill
Subsection 4(a) of the Senate bill provided that, except as provided
in subsection 4(b), all meetings of a collegial body comprising an
agency, or of a subdivision thereof authorized to take action on behalf
of the agency, shall be open to the public.
House amendment
The House amendment provided, in subsection (b) (2) of new section
552b, that except as provided in subsection (c), every portion of every
meeting of an agency (including a subdivision) shall be open to public
observation.
Conference substitute
The conference substitute is the same as the House amendment.
The phrase "open to public observation" is intended to guarantee
that ample space, sufficient visibility, and adequate acoustics will be
provided.
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EXEMPTIONS FROM OPEN MEETING REQUIREMENT
Senate bill
Section 4(b) of the Senate bill provided that, except where the
agency finds that the public interest requires otherwise, (1) the open
meeting requirement o subsection 4(a) shall not apply to any meeting,
or portion thereof, of an agency or a subdivision of an agency author-
ized to take action on behalf of the agency, and (2) the informational
and disclosure requirements of subsections 4 (c) and (d) shall not apply
to any information pertaining to such meeting otherwise required by
this section to be disclosed to the public, where the agency or sub-
division in question properly determines that such portion or portions
of the meeting, or such information, can be reasonably expected to-
(1) disclose matters (A) specifically authorized under criteria
by an Executive order to be kept secret in the interests of national
defense or foreign policy and (B) are in fact properly classified
pursuant to such Executive order;
(2) relate solely to the agency's own internal personnel rules
and ractices;
(3) disclose information of a personal nature where disclosure
would constitute a clearly unwarranted invasion of personal
privacy;
(4) involve accusing any person of a crime, or formally censuring
any person;
(5) disclose information contained in investigatory records
compiled for law enforcement purposes, but only to the extent
that the disclosure would (A) interfere with enforcement pro-
ceedings, (B) deprive a person of a right to a fair trial or an
impartial adjudication, (C) constitute an unwarranted invasion
of personal privacy, (D) disclose the identity of a confidential
source, (E) in the case of a record compiled by a criminal law
enforcement authority in the course of a criminal investigation, or
by an agency conducting a lawful national security intelligence
investigation disclose confidential information furnished only by
the confidential source, (F) disclose investigative techniques and
procedures, or (G) endanger the life or physical safety of law
enforcement personnel ;
(6) disclose trade secrets, or financial or commercial information
obtained from any person, where such trade secrets or other
information could not be obtained by the agency without a pledge
of confidentiality, or where such information must be withheld
from the public in order to prevent substantial injury to the
competitive position of the person to whom such information
relates;
(7) disclose information which must be withheld from the public
in order to avoid premature disclosure of an action or a proposed
action b
( ) an agency which regulates currencies, securities,
commodities, or financial institutions where such disclosure
would (i) lead to significant financial speculation in cur-
rencies, securities, or commodities, or (ii) significantly
endanger the stability of any financial institution;
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(B) any agency where such disclosure would significantly
frustrate implementation of the proposed agency action, or
private action contingent thereon; or
(C) any agency relating to the purchase by such agency
of real property.
This exemption would not apply in any instance where the agency
has already disclosed to the public the content or nature of its
proposed action, or where the agency is required by law to make
such disclosure on its own initiative prior to taking final agency
action on such proposal;
(8) disclose information contained in or related to examina-
tion, operating, or condition reports prepared by, on behalf of,
or for the use of an agency responsible for the regulation or
supervision of financial institutions;
(9) specifically concern the agency's participation in a civil
action in Federal or State court, or the initiation, conduct, or
disposition by the agency of a particular case of formal agency
adjudication pursuant to the procedures in section 554 of title 5,
United States Code, or otherwise involving a determination on the
record after opportunity for a hearing; or
(10) disclose information required to be withheld from the pub-
lic by any other statute establishing particular criteria or referring
to particular types of information.
House amendment
Subsection (c) of 5 U.S.C. 552b, as included in the House amend-
ment, provided that except in a case where the agency finds that the
public interest requires otherwise, the open meeting requirement of
subsection (b) shall not apply to any portion of an agency meeting,
and the informational and disclosure requirements of subsections (d)
and (e) shall not apply to any information pertaining to such meeting
otherwise required by this section to be disclosed to the public, where
the agency properly determines that such portion or portions of its
meeting or the disclosure of such information is likely to-
(1) disclose matters that are (A) specifically authorized under
criteria established by an Executive order to be kept secret in the
interests of national defense or foreign policy and (B) in fact
properly classified pursuant to such Executive order;
(2) relate solely to the internal personnel rules and practices of
an agency;
(3) disclose matters specifically exempted from disclosure by
statute (other than section 552 of title 5, United States Code),
provided that such statute (A) requires that the matters be
withheld from the public, or (B) establishes particular criteria
for withholding or refers to particular types of matters to be
withheld;
(4) disclose trade secrets and commercial or financial informa-
tion obtained from a person and privileged or confidential;
(5) involve accusing any person of a crime, or formally cen-
suring any person;
(6) disclose information of a personal nature where disclosure
would constitute a clearly unwarranted invasion of personal
privacy;
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(7) disclose investigatory records compiled for law enforcement
purposes, or information which if written would be contained in
such records, but only to the extent that the production of such
records or information would (A) interfere with enforcement
proceedings, (B) deprive a person of a right to a fair trial or an
impartial adjudication, (C) constitute an unwarranted invasion
of personal privacy, (D) disclose the identity of a confidential
source and, in the case of a record compiled by a criminal law
enforcement authority in the course of a criminal investigation,
or by an agency conducting a lawful national security intelligence
investigation, confidential information furnished only by the
confidential source, (E) disclose investigative techniques and
procedures, or (F) endanger the life or physical safety of law en-
forcement personnel;
(8) disclose information contained in or related to examination,
operating, or condition reports prepared by, on behalf of, or for
the use of an agency responsible for the regulation or supervision
of financial institutions;
(9) disclose information the premature disclosure of which
would-
(A) in the case of an agency which regulates currencies,
securities, commodities, or financial institutions, be likely to
(i) lead to significant financial speculation, or (ii) signifi-
cantly endanger the stability of any financial institution; or
(B) in the case of any agency, be likely to significantly
frustrate implementation of a proposed agency action,
except that exemption (9) (B) would not apply in any in-
stance after the content or nature of the proposed agency
action has been disclosed to the public by the agency, unless
the agency is required by law to make such disclosure prior
to, final agency action on such proposal or after the
agency publishes or serves a substantive, rule pursuant to
section 553 (d) of title 5, United States Code; or
(10) specifically concern the agency's issuance of a subpena, or
the agency's participation in a civil action or proceeding, an
action in a foreign court or international tribunal, or an arbitra-
tion, or the initiation, conduct, or disposition by the agency of a
particular case of formal agency adjudication pursuant to the
procedures in section 554 of title 5, United States Code, or
otherwise involving a determination on the record after op-
portunity for a hearing.
Conference substitute
The conference substitute is the same as the house amendment,
except that the third exemption, incorporating by reference exemptions
contained in other statutes, applies only to statutes that either (a)
require that the information be withheld from the public in such a
manner as to leave no discretion on the issue, or (b) establish par-
ticular criteria for withholding or refer to particular types of in-
formation to be withheld. The conferees intend this language to over-
rule the decision of the Supreme Court in Administrator, FAA v.
Robertson, 422 U.S. 255 (1975), which dealt with section 1104 of the
Federal Aviation Act of 1958 (49 U.S.C. 1504). Another example
of a statute whose terms do not bring it within this exemption is
section 1106 of the Social Security Act (42 U.S.C. 1306).
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The conferees' understanding and intention with respect to sub-
section (c) is as follows:
1. The conferees understand the word "likely" to mean that it is
more likely than not that the event or result in question will
occur.
2. The conferees intend the inclusion in the seventh exemption
(law enforcement material) of non-written information, such as
oral information imparted by a confidential informant, to cover
only information that if written would be included in investigatory
records compiled for law enforcement purposes.
3. The language of the House amendment regarding trade
secrets and confidential financial or commercial information is
identical to the analogous exemption in the Freedom of Informa-
tion Act, 5 U.S.C. 522(b)(4), and the conferees have agreed to
this language with recognition of judicial interpretations of that
exemption.
4. The limitation on the second part of the ninth exemption
(information whose disclosure would significantly frustrate a
proposed agency action) provides that it shall not apply in any
instance where the agency has already disclosed to the public
the content or nature of its proposed action, or where the agency
is required by law to,make such disclosure on its own initiative
prior to taking final agency action on the proposal. Disclosure
of the information other than by the agency, such as by an un-
authorized "leak", would not render it ineligible for the protec-
tion of this exemption.
5. In an appropriate instance, an agency discussion of the possi-
ble purchase of real property would fall within the second part
of the ninth exemption.
6. The House version of the personnel exemption is agreed to
with recognition of the Supreme Court's interpretation of the
analogous Freedom of Information Act exemption in Department
of the Air Force v. Rose, - U.S. -, 44 U.S.L.W. 4503. (April 21,
1976).
PROCEDURE FOR CLOSING MEETINGS
Senate bill
Subsection 4(c)(1) of the Senate bill provided that action to close
a meeting or to withhold information under subsection 4(b) shall be
taken only when a majority of the entire membership of the agency
or subdivision concerned votes to take such action. A separate vote
is to be taken with respect to each meeting (or portion thereof) pro-
posed to be closed, or any information proposed to be withheld,
except that a single vote may be taken with respect to a series of
meetings, a portion or portions of which are proposed to be closed to
the public, or with respect to any information concerning such series
of meetings, if each meeting in the series involves the same particular
matters and is scheduled to be held no more than 30 days after the
initial meeting in the series.
The vote of each agency member is to be recorded and proxies are
not permitted.
Whenever any person whose interests might be directly affected
by a meeting requests that the agency close a portion or portions of
the meeting under the exemptions relating to personal privacy,
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criminal accusation, or law enforcement information, the agency,
upon the request of any one of its members, is required to vote whether
to close such meeting.
Within one day of any vote taken pursuant to this paragraph, the
agency is required to make public a written copy of the vote.
Subsection 4(c)(2) of the Senate bill provided that if a meeting
(or portion thereof) is closed, the agency must, within one day of the
vote taken under paragraph (c) (1), make public a full written expla-
nation of its action closing the meeting, together with a list containing
the names and affiliations of all persons expected to attend the meeting.
Subsection 4(c) (3) of the Senate bill provided a'special procedure
whereby any agency, a majority of whose meetings will properly be
closed to the public pursuant to the exemptions for trade secrets,
information that might lead to financial speculation, bank condition
reports, or adjudicatory proceedings or civil actions, may provide
by regulation for the closing of such meetings or portions, so long as
a majority of the members of the agency vote at the beginning of the
meeting or portion to close the meeting and a copy of the vote is
made public.
The closing procedures of paragraphe (c) (1) and (2), and the an-
nouncement procedures of subsection (d), do not apply to any meeting
closed under these regulations, but the agency is required to make a
public announcement of the date, place, and subject matter of the
meeting at the earliest practicable opportunity (except to the extent
that to do so would' disclose information exempt under subsection
4(b)).
House amendment
Subsection (d) (1) of new section 552b, as set forth in the House
amendment, provided that action to close a meeting (or portion
thereof) may be taken only when a majority of the entire membership
of the agency votes to take such action. A separate vote of the agency
members is to be taken with respect to each meeting a portion or
portions of which are proposed to be closed, except that a single vote
may be taken with respect to a series of portions of meetings proposed
to be closed if each portion in such series involves the same particular
matters and is scheduled to be held no more than ~O days after the
initial portion of a meeting in the series.
The vote of each agency member is required to be recorded and
proxies are not permitted.
Subsection (d) (2) of section 552b provided that whenever any
person whose interests might be directly affected by a portion of a
meeting requests that the agency close such portion to the public
under the exemptions relating to personal privacy, criminal accusation,
or law enforcement information, the agency, upon the request of any
one of its members, is required to vote by recorded vote whether to
close such meeting.
Subsection (d) (3) of section 552b required the agency to make
public a written copy of any vote taken pursuant to paragraphs (d) (1)
or (2), reflecting the vote of each member on the question, within one
day after the vote. If the vote is to close the meeting (or a portion
thereof), the agency is also required to make public within one day a
full written explanation of its action closing the portion and a list of
the names and affiliations of all persons expected to attend the meeting.
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Subsection (d) (4) of section 552b provided a special procedure
whereby any agency, a majority of whose meetings may properly be
closed pursuant to the exemptions for trade secrets, information that
might lead to financial speculation, bank condition reports, or adjudi-
catory proceedings or civil actions, may provide by regulation for the
closing of such meetings or portions in the event that a majority of the
members of the agency vote by recorded vote at the beginning of the
meeting or portion to close the exempt portions thereof and a copy of
the vote, reflecting the vote of each member on the question, is made
public.
The closing procedures of paragraphs (d) (1), (2) and (3), and the
announcement procedures of subsection (e), do not apply to any
portion of a meeting closed under these regulations, but the agency is
required to make a public announcement of the date, place, and
subject matter of the meeting (and each portion thereof) at the
earliest practicable time and in no case later than the commencement
of the meeting or portion (except to the extent that to do so would
disclose information exempt under subsection (d)).
Conference substitute
The conference substitute is the same as the Senate bill, except as
follows:
1. The reference to an agency subdivision in paragraph (1) is
eliminated, since the definition of "agency" in subparagraph
(a) (1) of section 552b includes any subdivision thereof authorized
to act on behalf of the agency. The reference to the definition of
"agency" in this instance is intended to make clear that when a
subdivision is authorized to act on behalf of the agency, a majority
of the entire membership of the subdivision is necessary to close
a meeting.
2. Any vote to close a meeting upon the request of an affected
person, or using the special procedure under paragraph (d) (4),
must be recorded. When such vote is published, the vote of each
individual member shall be set forth.
3. While the public announcement required when a meeting is
closed using the special procedure under paragraph (d) (4) need
only be made at the earliest practicable time, the conferees intend
that such announcements be made as soon as possible, which
should in few, if any, instances be later than the commencement
of the meeting or portion in question.
4. The fact that one portion of a meeting may be closed does
not justify the closing of any other portion.
Senate bill
Section 4(d) of the Senate bill required that the agency publicly
announce, at least one week before a meeting, the following:
1. the date of the meeting;
2. the place of the meeting;
3. the subject matter of the meeting;
4. whether the meeting is open or closed to the public; and
5. the name and telephone number of the official designated by
the agency to respond to requests for information about the
meeting.
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This seven day period may be reduced if the majority of the mem-
bers of the agency or subdivision determine by vote that the agency
business so requires, in which case public announcement of the date,
place, and subject matter of the meeting, and whether it is open or
closed, is to be made at the earliest practicable opportunity.
The subject matter or closed/open determination for a meeting may
be changed following the initial public announcement if (1) a majority
of the entire membership of the agency or subdivision determines by
vote that the agency business so requires and that no earlier announce-
ment of the change was possible, and (2) the change is announced at
the earliest practicable opportunity.
Notice of any public announcement required by this subsection is
to be submitted for publication in the Federal Register immediately
after its release.,
House amendment
Subsection (e) of new section 552b, as added by the House amend-
ment, required that the agency publicly announce, at least one week
before a meeting, the following:
1. the date of the meetmg;
2. the place of the meeting;
3. the subject matter of the meeting;
4. whether the meeting is to be open or closed to the public; and
5. the name and telephone number of the official designated by
the agency to respond to requests for information about the
meeting.
This seven day period may be reduced if the majority of the mem-
bers of the agency determines by recorded vote that. the agency busi-
ness so requires, in which case public announcement of the date, place,
and subject matter of the meeting, and whether it was open or closed to
the public, is to be made at the earliest practicable time and in no case
later than the commencement of the meeting or portion in question.
The time, place, or subject matter of a meetmg, or the determination
whether a meeting should be open or closed, may be changed following
the initial public announcement if (1) a majority of the entire member-
ship of the agency determines by recorded vote that the agency busi-
ness so requires and that no earlier announcement of the change was
possible, and (2) the change and the vote of each member thereon is
announced at the earliest practicable time and in no case later than the
commencement of the meeting or portion in question.
Conference substitute
The conference substitute is the same as the House amendment,
except as follows:
1. While the public announcement required when a meeting is
announced on less than seven days' notice, or when the time, place
or subject matter of a meeting, or the determination whether to
open or close a meeting is changed following the initial public
announcement, need only be made at the earliest practicable time,
the conferees intend that such announcements be, as soon as
possible, which should in few, if any, instances be later than the
commencement of'the meeting or portion in question.
2. A change in the time or place of a meeting made subsequent
to the initial announcement need not be voted upon by the agency
members, but must be announced at the earliest practicable time.
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3. The bill requires that reasonable means be used to assure
that the public is fully informed of public announcements pursu-
ant to this section. Such means include posting notices on the
agency's public notice boards, publishing them in publications
whose readers may have an interest in the agency's, operations,
and sending them to the persons on the agency's general mailing
list or a mailing list maintained for those who desire to receive
such material.
Notice of a public announcement pursuant to this subsection
must also be submitted immediately for publication in the Federal
Register.
TRANSCRIPTS, RECORDINGS, AND MINUTES OF MEETINGS
Senate bill
Section 4(e) of the Senate bill required that a verbatim transcript
or electronic recording be made of each meeting or portion closed to the
public, except for a meeting or portion closed under the exemption for
adjudicatory proceedings and civil actions. The transcript or recording
of each item on the agenda is to be made available to the public
promptly, in a place easily accessible to the public, where no significant
portion of such item contains any information falling within one of the
the exemptions in section 4 (b).
Copies of the transcript (or a transcription of the recording dis-
closing the identity of each speaker) are to be furnished to any person
at the actual cost of duplication or transcription.
The complete transcript or recording is to be maintained by the
agency for at least two years after the meeting or one year after the
conclusion of the agency proceeding which was the subject of the
meeting, whichever occurred later.
House amendment
Subsection (f) (1) of new section 552b, as contained in the House
amendment, required that for every meeting closed under the section,
the General Counsel or chief legal officer of the agency certify that, in
his opinion, the meeting may properly be closed and state the relevant
exemptive provision. A copy of such certification, together with a
statement from the presiding officer of the meeting setting forth the
date, time, and place of the meeting, the persons present, the generic
subject matter of the discussion at the meeting, and the actions taken,
is to be incorporated into minutes retained by the agency.
Subsection (f) (2) of section 552b required that written minutes be
kept of any meeting or portion which is open and promptly be made
available to the public in a location easily accessible to the public.
The minutes are to be maintained for a period of at least two years
after the meeting, and copies are to be furnished to any person at no
greater than the actual cost of duplication (or, if in the public interest,
at no cost).
Conference substitute
Subsection (f) (1) of the conference substitute requires that before
a meeting may be closed, the General Counsel or chief legal officer
of the agency must certify that, in his or her opinion, the meeting may
properly be closed and state each relevant exemptive provision. A copy
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of such certification, together with a statement from the presiding
officer of the meeting setting forth the date, time, and place of the
meeting, and the persons present, shall be retained by the agency as
part of the transcript, recording, or minutes of the meeting.
The agency shall make a verbatim transcript or electronic recording
of eaeh meeting or portion closed to the public, except that for a meet-
ing closed under exemptions (8) (bank reports), (9) (A) (information
likely to lead to financial speculation), and (10) (adjudicatory proceed-
ings or civil actions), the agency may elect to make either a transcript
a recording, or minutes. If minutes are kept, they must fully and
clearly describe all matters discussed, provide a full and accurate
summary of any actions taken and the reasons expressed therefor,
and include a description of each of the views expressed on any item.
The minutes must also reflect the vote of each member on any roll
call vote taken during the proceedings and must identify all documents
considered at the meeting.
Subsection (f) (2) of the conference substitute requires that the
transcript, recording, or minutes made pursuant to paragraph (f) (1)
as to each item on the agenda must be made promptly available to
the public, except for agenda items or items of the discussion or testi-
mony that the agency determines to contain information exempt
under subsection (c).
Copies of the nonexempt portions of the transcript, or minutes, or a
transcription of the recording disclosing the identity of each speaker,
must be furnished to any person at the actual cost of duplication or
transcription.
The complete transcript, minutes, or recording of a closed meeting
is to be maintained by the agency for at least two years after the meet-
ing or one year after the conclusion of the agency proceeding which
was the subject of the meeting, whichever occurs later.
Senate bill
Section 4(f) of the Senate bill required each agency subject to the
requirements of section 4 to promulgate implementing regulations
within 180 days after the enactment of the Act, following consultation
with the Office of the Chairman of the Administrative Conference
of the United States, published notice in the Federal Register of at
least 30 days and opportunity for any person to make written com-
ment thereon.
The Senate provision permitted any person to bring a proceeding
in the United States District Court for the District of Columbia
to require the promulgation of such regulations if not promulgated
within the 180-day period, and also permitted any person to bring
a proceeding in the United States Court of Appeals for the District
of Columbia Circuit to set aside any such regulations not in accord
with the requirements of subsections (a) through (e) of section 4
and to require the promulgation of regulations in accord with those
provisions.
House amendment
The House amendment, subsection (g) of new section 552b, was
the same as the Senate bill, except that the right to bring a proceeding
in the Court of Appeals to challenge agency regulations promulgated
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under the Act is subject to "any limitations of time therefor provided
by law."
Conference substitute
The conference substitute is the same as the House amendment,
except that the right to bring a proceeding in the Court of Appeals
to challenge agency regulations promulgated under the Act is subject
to "any limitations of time provided by law."
Senate bill
Section 4(g) of the Senate bill vested in the United States District
Courts jurisdiction to enforce subsections (a) through (e) of section 4
by declaratory judgment, injunctive relief, or other appropriate relief.
An action may be brought by any person prior to, or within 60 days
after the meeting in question, except that if proper public announce-
ment of the meeting is not made, the action may be instituted at any
time within 60 days after such announcement is made.
The Senate provision required a potential plaintiff to notify the
agency before instituting suit and to allow it a reasonable period of
time (not to exceed 10 days or, if notification is made prior to the
meeting, not to exceed two days) to correct the violation.
An action may be brought where the plaintiff resides or has his
principal place of business, or where the agency has its headquarters.
The defendant is required to serve his answer within 20 days after the
service of the complaint, and the burden is on the defendant to sustain
his action.
In deciding such an action the court may examine in camera any
portion of the transcript or recording of a closed meeting and may take
any additional evidence it deems necessary. The court, having due
regard for orderly administration, the public interest, and the in-
terests of the party, may grant such equitable relief as it deems ap-
propriate, including enjoining future violations or ordering the agency
to make public the transcript or recording of any portion of a meeting
improperly closed to the public.
Subsection 4(g) provided that, except as provided in subsection
4(h), nothing in section 4 confers jurisdiction upon any district court
to set aside or invalidate any agency action taken or discussed at a
meeting out of which a violation of this section arose.
Subsection 4(h) of the Senate bill provided that any Federal court
otherwise authorized by law to review agency action may, at the re-
quest of any person properly participating in such a review proceeding,
inquire into violations of section 4 by the agency and afford any such
relief as it deems appropriate.
House amendment
In the House amendment, subsection (h) of new section 552b
vested in the United States District Courts jurisdiction to enforce
subsections (b) through (f) of section 552b. An action may be brought
by any person prior to, or within 60 days after the meeting in question,
except that if proper public announcement of the meeting is not made,
the action may be instituted at any time within 60 days after such
announcement is made.
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The House amendment permitted an action to be brought where
the meeting was held, where the agency has its headquarters, or in the
District of Columbia. The. defendant is required to serve his answer
within 20 days after the service of the complaint, but the court may
extend that time limit for up to 20 additional days upon a showing of
good cause for an extension. The burden is on the defendant to sustain
his action.
In deciding such an action the court may examine in camera any
portion of the minutes of a closed meeting and may take any addi-
tional evidence it deemed necessary. The court, having due regard for
orderly administration, the public interest, and the interests of the
part, may grant such equitable relief as it deems appropriate, in-
cluding enjoining future violations or ordering the agency to make
public such portion of the minutes as was not exempt under subsection
(c) of section 552b.
Subsection (h) further provided that nothing in section 552b confers
jurisdiction on a district court acting solely under subsection (h) to
set aside, enjoin, or invalidate any agency action taken or discussed
at a meeting out of which a violation of section 552b arose.
Conference substitute
The conference substitute vests in the United States District
Courts jurisdiction to enforce subsections (b) through (f) of section
552b by declaratory judgment, injunctive relief, or other relief as may
be appropriate. An action may be brought by any person prior to, or
within 60 days after the meeting in question, except that if proper
public announcement of the meeting is not made, the action may be
instituted at any time within 60 days after such announcement is made.
The conference substitute does not contain the requirement of the
Senate bill that a potential plaintiff formally notify the agency before
commencing an action under this subsection because the conferees
expect and encourage potential plaintiffs or their attorneys to com-
municate informally with the agency before bringing suit.
An action under subsection (h) (1) may be brought where the agency
meeting was or is to be held, where the agency has its headquarters, or
in the District of Columbia. The defendant must serve his answer
within 30 days after the service of the complaint, and the court is not
given discretion by the substitute to extend that time limit. The bur-
den is upon the defendant to substain his action.
In deciding such an action the court may examine in camera any
portion of the transcript, recording, or minutes of a closed meeting and
may take any additional evidence it deems necessary. The court,
having due regard for orderly administration, the public interest, and
the interests of the party, may grant such equitable relief as it deems
appropriate, including enjoining future violations or ordering the
agency to make public such portion of the transcript, recording, or
minutes as is.not exempt under subsection (c) of section 552b.
Subsection (h) (2) of section 552b, as contained in the conference
substitute, provides that any Federal court otherwise authorized to
review action (under provisions such as chapter 7 of title 5, U.S.
Code, or chapter 158 of title 28, U.S. Code) may, on the application
of any person properly participating in the review proceeding, inquire
into violations of section 552b by the agency and afford such relief
as it deems appropriate. Nothing in section 552b authorizes any
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Federal court having jurisdiction solely on the basis of subsection
(h)(1) to set aside, enjoin, or invalidate any agency action (other
than an action, such as to close a meeting, or withhold a portion of
a transcript, recording, minutes, or other information, taken pursuant
to section 552b) taken or discussed at a meeting out of which a viola-
tion of section 552b arose.
The conferees do not intend the authority granted to the Federal
courts by the first sentence of subsection (h) (2) to be employed to set
aside agency action taken other than under section 552b solely because
of a violation of section 552b in any case where the violation is un-
intentional and not prejudicial to the rights of any person participat-
ing in the review proceeding. Agency action should not be set aside for
a violation of section 552b unless that violation is of a serious nature.
Senate bill
Section 4(i) of the Senate bill authorized the court hearing an action
under subsection (f), (g), or (h) of that section to assess against any
party reasonable attorney fees and other litigation costs reasonably
incurred by any other party who substantially prevails in the action.
Costs may be assessed against an individual member of an agency
only where the court finds that he has intentionally and repeatedly
violated section 4, and against a plaintiff where the court finds that he
initiated the suit for frivolous or dilatory purposes. In the case of
apportionment of fees or costs against any agency, the fees or costs
may be assessed against the United States.
House amendment
Subsection (i) of new section 552b, as contained in the House
amendment, authorized the court hearing an action under subsection
(g) or (h) of section 552b to assess against any party reasonable attor-
ney fees and other litigation costs reasonably incurred by any other
party who substantially prevails in the action. Costs may be assessed
against a plaintiff only where the court finds that he initiated the suit
primarily for frivolous or dilatory purposes. In the case of assessment
of fees or costs against an agency, they may be assessed against the
United States.
Conference substitute
The conference substitute is the same as the House amendment.
Senate bill
Section 4(j) of the Senate bill required the agencies subject to the
requirements of section 4 to report annually to Congress regarding
their compliance, including the total number of meetings open to the.
public, the total number closed to the public, the reasons for the clos-
ings, and a description of any litigation brought against the agency
under section 4.
House amendment
Subsection (j) of new section 552b of the House amendment re-
quired each agency subject to the requirements of the section to report
annually to Congress regarding its compliance, including the total
number of meetings open to the public, the total number closed to the
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public, the reasons for the closings, and a description of any litigation
brought against the agency under section 552b (including any fees or
costs assessed against the agency in such litigation, whether or not
paid by the agency).
Conference substitute
The conference substitute is the same as the House amendment.
RELATIONSHIP TQ THE FREEDOM OF INFORMATION ACT, 5 U.B.C. 552
Senate bill
Section 6(a) of the Senate bill provided that except as specifically
provided in section 4, nothing in section 4 confers any additional rights
on any person or limits the existing rights of any person to inspect or
copy, under 5 U.S.C. 552, any documents or written material within
the possession of any agency. In the case of any request made pursuant
to 5 U.S.C. 552 to copy or inspect the transcripts or recordings
described in section 4(e) of the Senate bill, the provisions of this Act
govern whether the transcripts or recordings are to be made available
in response to the request.
Section 6(a) also makes the requirements of chapter 33 of title 44,
United States Code, inapplicable to the transcripts and recordings
described in section 4(e) of the Senate bill.
The Senate bill contained no provision amending the third exemp-
tion set forth in 5 U.S.C. 552(b).
House amendment
Subsection (k) of new section 552b, as included in the House amend-
ment, provided that other than as specifically provided in section
552b, nothing in section 552b expands or limits the existing rights of
any person under 5 U.S.C. 552, except that the provisions of this
act govern in the case of any request made pursuant to 5 U.S.C. 552
to copy or inspect the minutes described in subsection (f) of new
section 552b.
Subsection (k) also makes the requirements of chapter 33 of title
44 United States Code, inapplicable to the minutes described in
subsection (f) of section 552b.
Section 5(b) of the House amendment amended the third exemp-
tion set forth in 5 U.S.C. 552(b) to include matters specifically ex-
empted from disclosure by statute (other than the new section 552b),
if the statute either requires that the matters be withheld from the
public or establishes particular criteria for withholding or refers to
particular types of matters to be withheld.
Conference substitute
The conference substitute provides that nothing in section 552b
expands or limits the existing rights of any person under 5 U.S.C.
552, except that the exemptions in subsection (c) of section 552b
shal govern in the case of any request made pursuant to 5 U.S.C. 552
to copy or inspect the transcripts, recordings or minutes described in
subsection (f) of section 552b.
The conference substitute further provides that the requirements of
chapter 33 of title 44, United States Code, shall not apply to the
transcripts; recordings, and minutes described in subsection (f) of
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Section 5(b) of the conference substitute amends the third exemp-
tion in 5 U.S.C. 552(b) to include information specifically exempted
from disclosure by statute (other than new section 552b), if the
statute either (a) requires that the information be withheld from the
public in such a manner as to leave no discretion on the issue, or (b)
establishes particular criteria for withholding or refers to particular
types of information to be withheld. The conferees intend this language
to overrule the decision of the Supreme Court in Administrator, FAA
v. Robertson, 422 U.S. 255 (1975), which dealt with section 1104 of
the Federal Aviation Act of 1958 (49 U.S.C. 1504). Another example
of a statute whose terms do not bring it within this exemption is
section 1106 of the Social Security Act (42 U.S.C. 1306).
AUTHORITY TO WITHHOLD INFORMATION FROM CONGRESS
Section 6(a) of the Senate bill, subsection (1) of new section 552b
of the House amendment, and subsection (1) of section 552b in the
conference substitute all provide that the open meeting provisions
of the legislation (section 552b of the conference substitute) do not
constitute authority to withhold information from Congress.
Senate bill
No comparable provision.
House amendment
Subsection (1) of new section 552b, as contained in the House
amendment, provides that section 552b does not authorize the closing
of any agency meeting otherwise required by law to be open.
Conference substitute
The conference substitute is the same as the House amendment.
RELATIONSHIP TO THE PRIVACY ACT OF 1974, 5 U.S.C. 552A
The Senate bill, the House amendment, and the conference sub-
stitute all provide that nothing in the open meeting provisions of this
legislation (section 552b of the conference substitute) authorizes any
agency to withhold from any individual any record, including the
transcripts, recordings, and minutes required by these provisions,
which is otherwise accessible to that individual under 5 U.S.C. 552a.
Senate bill
No comparable provisions.
House amendment
Subsection (n) of new section 552b of the House amendment pro-
vided that in the event that any meeting is subject to the provisions of
the Federal Advisory Committee Act (5 U.S.C. App. I) as well as the
provisions of section 552b, the meeting is governed by the provisions
of section 552b.
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Subsection 5(c) of the House amendment amended the Federal
Advisory Committee Act to make advisory committee meetings sub-
ject to the exemptions contained in the new 5 U.S.C. 552b (enacted by
this act), rather than to the exemptions contained in 5 U.S.C. 552.
This provision in the House bill is addressed to a problem that has
arisen in administration of the Federal Advisory Committee Act,
enacted in 1972. In establishing a requirement in that Act that meeting,
of Executive Branch. advisory committee should be, open to the public,
Congress adopted the exemption provisions set forth in the Freedom of
Information Act (FOIA) to describe the few types of meetings that
might properly be closed. Unfortunately, this approach has not been
entirely satisfactory, largely because those exemptions were designed
to deal with documents rather than meetings, and some agencies have
closed advisory committee meetings for reasons not contemplated by
Congress. The chief concern in this regard has been application of
exemption 5, a provision intended to protect the confidentiality of
purely internal governmental deliberations, as a basis for closing dis-
cussions with and among outside advisers. One court has given approval
to the use of exemption 5 to close advisory committee meetings,
Aviation Consumer Action Project v. Washburn, 535 F.2d 101 (D.C.
Cir. 1976).
The House provision which was unanimously approved, is intended
to cure this and similar problems by replacing the nine FOIA exemp-
tions presently incorporated in the Federal Advisory Committee Act
with the new exemptions of the Sunshine Act that have been expressly
designed to govern meetings, as opposed to documents. This provision
thus overrules the l47ashburn case and is intended to end agency
reliance upon the "full and frank" discussion rationale for closing
advisory committee meetings. Under this provision, portions of federal,
advisory committee meetings may be, but are not required to be
closed when they fall within one of the disclosure exemptions that are
created for meetings of-collegial bodies under section 552b of title 5,
United States Code.
Conference substitute
Subsection 5(c) of the conference substitute amends the Federal
Advisory Committee Act (5 U.S.C. App. I) to make' advisory com-
mittee meetings subject to the exemptions contained in 5 U.S.C. 552b
(enacted by this act).
The Conference substitute is the same as the House provision. The
conferees, however, are concerned about the possible effect of this
amendment upon the peer review and clinical trial preliminary data
review systems of the National Institutes of Health.The conferees thus
wish to state as clearly as possible that personal data such as individual
medical information, is especially sensitive and should be given appro-
priate protection to prevent clearly unwarranted invasions of individ-
ual privacy. While the conferees are sympathetic to the concerns
expressed by NIH regarding its committees' funding recommendations
and analysis of preliminary data, the conferees are equally sympathetic
to concerns expressed by citizens' groups that important fiscal and
health-related information not be unnecessarily withheld from the
public.
With these competing interests in mind, the conferees have secured
assurances that the appropriate House and Senate committees will
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review the unique problems of NIH under the new standards. Indeed,
it is noted that the Subcommittee on Reports, Accounting and
Management of the Senate Government Operations Committee has
already held three days of hearings on this matter and plans to
continue with further inquiry at an early date.
PROHIBITION
Senate bill
Section 5(a) of the Senate bill added a new subsection (d) to 5
U.S.C. 557. Subsection (d) provided that in any agency proceeding
subject to 5 U.S.C. 557(a), except as required for the disposition of
ex parte matters as authorized by law-
(1) no interested person outside the agency shall make or
knowingly cause to be made to any member of the body com-
prising the agency, administrative law judge, or other employee
who is or may reasonably be expected to be involved in the
decisional process of the proceeding, an ex parte communication
relevant to the merits of the proceeding;
(2) no member of the body comprising the agency, administra-
tive law judge, or other employee who is or may reasonably be
expected to be involved in the decisional process of the proceeding
shall make or knowingly cause to be made to an interested person
outside the agency an ex paste communication relevant to the
merits of the proceeding;
(3) a member of the body comprising the agency, administra-
tive law judge, or other employee who is or may reasonably be
expected to be involved in the decisional process of such proceed-
ing who receives, or who makes, a communication in violation of
subsection (d), shall place on the public record of the proceeding:
(A) written communications transmitted in violation of
subsection (d) ;
(B) memorandums stating the substance of all oral
communications occurring in violation of subsection (d) ; and
(C) responses to the materials described in the two
preceding paragraphs;
(4) upon receipt of a communication knowingly made by a
party, or which was knowingly caused to be made by a party in
violation of subsection (d), the agency, administrative law judge,
or other employee presiding at the hearing may, to the extent
consistent with the interests of justice and the policy of the
underlying statutes, require the person or party to show cause
why his claim or interest in the proceeding should not be dis-
missed, denied, disregarded, or otherwise adversely affected by
virtue of such violation;
(5) the prohibitions of subsection (d) shall apply at such time
as the agency might designate, but in no case later than the time
at which a proceeding is noticed for hearing unless the person
responsible for the communication has knowledge that it will be
noticed, in which case the prohibitions shall apply at the time of
his acquisition of such knowledge.
Section 6(a) of the Senate bill provided that the act does not
authorize any information to be withheld from Congress.
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House amendment 1. t
Section 4(a) of the House amendment added a new subsection (d)
to 5 U.S.C. 557. Subsection (d) provided that in any agency proceeding
subject to 5 U.S.C. 557(a), except as required for the disposition of
ex parte matters as authorized by law-
(1) no interested person outside the agency shall make or cause
to be made to any member of the body comprising the agency,
administrative law judge, or other employee who is or may
reasonably be expected to be involved in the decisional process of
the proceeding, an ex parte communication relative to the merits
of the proceeding;
(2) no member of the body comprising the agency, administra-
tive law judge, or other employee who is or may reasonably be
expected to be, involved in the decisional process of the proceed-
ing, may make or cause to be made to any interested person
outside the agency an ex parte communication relative to the
merits of the proceeding;
(3) a member of the body comprising the agency, administra-
tive law judge, or other employee who is or may reasonably be
expected to be involved in the decisional process of such proceed-
ing who receives, or who makes or caused to be made, a com-
munication prohibited by subsection (d) shall place on the public
record of the proceedings :
(A) all such written communications;
(B) memoranda stating the substance of all such oral
communications; and
(C) all written responses, and memoranda stating the sub-
stance of all oral responses, to the materials described in the
two preceding paragraphs;
(4) in the event of a communication prohibited by this sub-
section and made or caused to be made by a party or interested
person, the agency, administrative law judge, or other employee
presiding at the hearing may, to the extent consistent with the
interests of justice and the policy of the underlying statutes,
require the person or party to show cause why hi> claim or interest
in the proceeding should not be dismissed, denied, disregarded,
or otherwise adversely affected on account of such violation; and
(5) the prohibitions of subsection (d) shall apply beginning at
such time as the agency may designate, but in no case later than
the time at which a proceeding is noticed for bearing unless the
person responsible for the communication has knowledge that
it would, be noticed, in which case the prohibitions shall apply
beginning at the time of his acquisition of such knowledge.
Subsection (d) (2), as added by the House amendment, provided
that subsection (d) does not constitute authority to withhold in-
formation from Congress.
Conference substitute
. The conference substitute is the same as the Senate bill, except as
follows:
1. The requirement of placing material on the public record
applies to an agency decisionmaking official who knowingly
causes an ex parte communication to be made, as well as to one
who receives or makes such ,a communication-
2. 2. The conference substitute clarifies the time at which the
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3. The provision that subsection (d) is not authority to with-
hold information from Congress is included in the subsection as
paragraph (2).
4. Although the conference substitute does not contain express
provision for sanctions against an interested person (who is not
a party) who makes a prohibited communication, the conferees
intend that.such...a-person be subject to all sanctions provided
in the bill if he later. becomes a party to the proceeding.
The word "relevant" is not used in th@ strict evidentiary sense, but
is intended to apply to communications bearing on the merits or
affecting the merits.
DEFINITION OF "EX PARTE COMMUNICATION"
Senate bill
Section 5(b) of the Senate bill defined an ex parte communication
as an oral or written communication not on the public record with
respect to which reasonable prior notice to all parties is not given.
House amendment
Section 4(b) of the House amendment defined an ex parte com-
munication as an oral or written communication not on the public
record with respect to which reasonable prior notice to all parties
is not given. The definition expressly excluded requests for information
on or status reports relative to any matter or proceeding covered by
subchapter II of chapter 5 of title 5, United States Code.
Conference substitute
The conference substitute defines an ex parte communication as an
oral or written communication not on the public record with respect
to which reasonable prior notice to all parties is not given. The defini-
tion contained in the conference substitute expressly excludes requests
for status reports on any matter or proceeding covered by subchapter
II of chapter 5 of title 5, United States Code.
The conferees wish to note the fact that this provision and the
ex parte provisions of new section 557(d) (as added by this act) in
no way prohibit-
1. any communication with an agency decisionmaking official
if not involving a formal adjudicatory proceeding (and a few
formal rulemaking proceedings) ; or
2. any communication with a decisionmaking official is not
relevant to the merits of a covered proceeding; or
3. any communication with a decisionmaking official in any
proceeding at any time if it involves only a request for the status
of the proceeding and is not intended to affect the merits; or
4. any communication at any time with an agency official not
involved in the decisional process.
Senate bill
Section 5(c) of the Senate bill amended 5 U.S.C. 556(d) to permit an
agency, to the extent consistent with the interests of justice and the
policy of the underlying statutes administered by the agency, to con-
sider a violation of 5 U.S.C. 557(d), as added by this act, sufficient
grounds for a decision on the merits adverse to a party who has
knowingly committed or caused the violation.
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House amendment
Section 4(c) of the House amendment amended 5 U.S.C. 556(d) to
permit an agency, to the extent consistent with theinterests of justice
and the policy of the underlying statutes administered by the agency,
to consider a violation of 5 U.S.C. 557(d), as added by this act, suffi-
cient grounds for a decision on the merits adverse to a person or party
who has committed or caused the violation.
Conference substitute
The conference substitute is the same as the Senate bill.
CONFORMING AMENDMENT AND EFFECTIVE DATES
Senate bill
No comparable provision.
House amendment
Section 5(a) of the House amendment amended 39 U.S.C. 410(b) (1)
to make clear the fact that new section 552b and, the Privacy Act of
1974 (5 U.S.C. 552a) apply to the United States Postal Service.
Conference substitute
The conference substitute is the same as the House amendment.
EFFECTIVE DATES
The Senate bill, the House amendment, and the conference sub-
stitute all provide that this act shall take effect, 180 days after the
date of its enactment, except that the provision requiring the promul-
gation of agency regulations to implement the open meeting provisions
(new section 552b(g)), as contained in the conference substitute, shall
take effect upon enactment.
ABE RIBICOFF,
EDMUND S. AJUSKIE,
LEE METCALF,
LAWTON CHILES,
C. H. PERCY,_
J. JAVITS,
W. V. RoTH,,Jr.,
Managers on the Part of the Senate.
JACK BROOKS,
JOHN E. Moss,
DANTE B. FASCELL,
JOHN CONYER6.
BELLA S. ABZ"17G,
WALTER FLO-,VIRS,
GEORGE E. DANIELSON,
BARBARA JORDAN,
R. L. MAZZOLI,
EDWARD W. PATTERSON,
FRANK HORTO ,,
PAUL N. MCC .OSKEY, Jr.,
CARLOS J. MOORHEAD,
THOMAS N. KNDNESS,
Managers on the Part of the House.
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