GOVERNMENT IN THE SUNSHINE ACT It is important to emphasize that the subsection (d) (4) procedure does not permit an agency to close any meeting which is not otherwise eligible for closure, nor does it permit the agency to omit in each case a determination as to whether the public interest calls for invoking the exemption. It does, however, allow an agency to dispense with most of the closing procedures of subsections (d)(1), (2), and (3), and the announcement procedures of subsection (e). An agency relying on (d) (4) need not take a vote in advance of the meeting on whether or not to close, and while it must make a public announcement of the time, place, and subject matter of the meeting "at the earliest practicable time," this announcement need not be seven days in advance of the meeting, need not include a "full written explanation" of the decision to close, a list of all expected attendees, or the name and phone Futures Trading Commission, 17 C.F.R. §147.6, 42 F.R. 13706; Equal Employment Opportunity Commission, 29 C.F.R. §1612.13, 42 F.R. 13833; Export-Import Bank of the United States, 12 C.F.R. §407.2(b), 42 F.R. 12418; Federal Deposit Insurance Corporation, 12 C.F.R. §311.6, 42 F.R. 14677; Federal Farm Credit Board, Farm Credit Administration, 12 C.F.R. §604.330, 42 F.R. 12162; Federal Home Loan Bank Board, 12 C.F.R. §505b.5, 42 F.R. 13108; Federal Home Loan Mortgage Corporation, 1 C.F.R. §460.1-5(a), 42 F.R. 14858; Federal Reserve System Board of Governors, 12 C.F.R. §261b.7, 42 F.R. 13298; Federal Trade Commission, 16 C.F.R. §4.15, 42 F.R. 13541; Indian Claims Commission, 25 C.F.R. §504.10, 42 F.R. 13825; National Labor Relations Board, 29 C.F.R. §102.140(a), 42 F.R. 13551; National Mediation Board, 29 C.F.R. §1209.06(a), 42 F.R. 60740; Occupational Safety and Health Review Commission, 29 C.F.R. §2203.3(c)(4), 42 F.R. 15415; Postal Rate Commission, 39 C.F.R. §3001.43(d)(5), 42 F.R. 13291; Securities and Exchange Commission, 17 C.F.R. §200.405, 42 F.R. 14696; United States Parole Commission, 28 C.F.R. §16.205, 42 F.R. 14715; United States Postal Service, 39 C.F.R. §7.4(d), 42 F.R. 12863. The Postal Service regulation is the only one to address the question of how to invoke subs. (d)(4) for agency subdivisions with specialized responsibilities. The regulation contains no determination that the Service's Board of Governors, or any particular committee, meets the majority-of-meetings test, but authorizes any committee which determines that it meets the test to close its meetings under subsection (d)(4). Where agency subdivisions have specialized responsibilities, there is no reason why the availability of subs. (d)(4) should not be determined on the basis of each subdivision's experience. However, we believe that the determination with respect to each subdivision should be reflected in the agency's regulation. The Federal Power Commission concluded that it was eligible to invoke subs. (d)(4), but declined to do so "at the present time," 42 F.R. 14698. See also regulations of the Interstate Commerce Commission, 42 F.R. 13798, which also decided not to invoke subs. (d)(4). GOVERNMENT IN THE SUNSHINE ACT number of an agency contact person, and need not be published in the Federal Register. 24 Furthermore, no special procedures are required for changing the subject matter of such a meeting. Thus, under (d) (4) procedures, an agency will be able routinely to add or delete agenda items on short notice and without prior action by the collegial body. An agency proceeding under subsection (d) (4) must still comply with certain procedural requirements. These include obtaining a recorded vote for closure by a majority of agency members at the beginning of the meeting or portion, making publicly available a copy of the vote showing how each member voted,25 and obtaining the General Counsel's certification under subsection (f)(1). Furthermore, the provisions of subsection (f) regarding the maintenance of a transcript, recording, or minutes of a closed meeting, and the making available of non-exempt portions thereof to the public apply equally to all closed meetings whether closed pursuant to subsection (d) (1) or subsection (d) (4) procedures. Public announcement of the subsection (d) (4) meeting must be made "at the earliest practicable time." The Conference Report states that "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." Conf. Rept., 17. Since the members of the agency are not expected to vote on closing the meeting until the beginning of the meeting itself (and, arguably, must vote at the meeting whether or not they have voted earlier), the public announcement will ordinarily precede the vote.26 Presumably, the announcement may be 24The Federal Deposit Insurance Corporation will publish announcement of meetings closed pursuant to subsection (d)(4) in the Federal Register "if publication can be effected at least one day prior to the scheduled date of the meeting." 12 C.F.R. §311.6(b), 42 F.R. 14677. See also regulation of the Securities and Exchange Commission, 17 C.F.R. §200.403(d)(2), 42 F.R. 14696. But cf. notice of the Federal Trade Commission, 42 F.R. 63660. 25 The House Government Operations Committee Report notes, however, that "while the vote to close is not required to be made public within one day after it is taken, it must be made public as promptly as is physically possible." H. Rept. I, 14. 26 The requirement for a majority vote for closure "at the beginning of such meeting," if interpreted literally, raises a peculiar problem. A vote to close requires a majority of the entire membership under subsection (d)(1), but that majority may be obtained by notation procedure. If the majority required for closure under subsection (d)(4) must cast their votes at the meeting, it may be harder to obtain a closure vote under subsection (d)(4) than under subsection (d)(1). Yet the theory of subsection (d)(4) is that such closures are expected to be fairly routine. One solution to the dilemma would be GOVERNMENT IN THE SUNSHINE ACT made by the official responsible for establishing the agenda and will be to the effect that the agency will meet to consider stated subject matter and that the meeting may or may not be closed. Computing the "Majority." How are agencies to compute the required majority of meetings eligible for closure for purposes of invoking subsection (d)(4)? Three methods of computation suggest themselves. The computation might be made (1) by counting toward the majority of meetings any meeting, any portion of which could be closed under one of the (d)(4) exemptions;27 (2) by counting exempt agenda items, as a proportion of total agenda items;28 or (3) by computing the amount of time devoted to exempted agenda items, or to interpret the majority required by subsection (d)(4) as the majority of a quorum, but this seems to run counter to the statutory language. Another solution would be to permit some form of absentee voting (subsection (d)(4), unlike subsection (d)(1), does not specifically forbid proxies). Permitting members to note in advance that they favor closing a particular meeting does not seem inconsistent with tallying the votes at the beginning of the meeting. Or the provision for a vote "at the beginning of such meeting" might be interpreted as permissive (in contrast to the procedure under subs. (d)(1), which requires a vote at least a week in advance of the meeting) and not as precluding an earlier vote so long as that vote is taken with respect to the particular meeting. 27See, e.g., FTC Staff Analysis, 25-26, House Judiciary Oversight Hearing, 56-57. The Commission counts as a closed meeting any meeting which contained any discussion eligible for exemption (10). The final FTC rule allows for subsection (d)(4) procedures only with regard to exemption (10) items, 16 C.F.R. §4.15(c)(2), 42 F.R. 13541. Notwithstanding that subsection (d)(4) does not require that agency eligibility be established separately for each of the four exemptions, the FTC Staff Analysis recommended, at least for the time being, "against using (d)(4) procedures for (c)(4) items without a better. record basis showing the regularity with which (c)(4) information is discussed at meetings." FTC Staff Analysis, 26. The National Labor Relations Board's rule likewise limits subsection (d)(4) procedure to exemption (10) cases, 29 C.F.R. §§102.139(a), 102.140(a), 42 F.R. 13551. For other agencies adopting the FTC "meeting" approach, see, e.g., the regulations of the EEOC, Federal Home Loan Bank Board, and the Federal Reserve System, supra, at 40, note 23. 28See proposed regulations of the Commodity Credit Corporation, 42 F.R. 7963; and the Postal Rate Commission, 41 F.R. 54951. The Securities and Exchange Commission also made its determination by employing this method. Letter of June 8, 1977 from Harvey L. Pitt, General Counsel, Securities and Exchange Commission, commenting on the tentative edition of the Guide. GOVERNMENT IN THE SUNSHINE ACT making a qualitative judgment on the basis of time and relative significance of exempt items.29 The Act and its legislative history offer little or no guidance on the question of how to compute the "majority" of meetings as required under (d)(4). The Conference Report simply notes "the fact that one portion of a meeting may be closed does not justify the closing of any other portion." Conf. Rept., 17. This might be read as rejecting a computation based on the first method, although it is not clear that the statement is addressed to the computation problem. In any event, the first method is subject to the objection that it would permit an entire meeting to be counted as closed even if it contained only one exempted agenda item. This would seem to permit a skewed result and distort the apparent intent of subsection (d)(4). The second method, measuring by exempted agenda items, would seem consistent with the Act's general approach of treating each portion of a meeting on its own merits for purposes of closure. However, this approach might conceivably result in a manipulated tabulation of eligible agenda items. The third method would appear, in the abstract, to be the best. However, supporting documentation, such as the percentage of meeting time devoted to items exempted under the (d)(4) exemptions, or the portions of staff preparation time devoted to such subjects, etc., may not be as readily available as data on the number of agenda items, and any evaluation of the significance of exempt items is likely to be subjective. What appears to be called for, in the last analysis, is a good faith calculation based on a review of past agency meetings and a reasonable expectation of future agency business.30 The question of computing the majority, however, may be largely academic since by and large the agencies invoking (d) (4) are the ones which were expected to invoke it, and there may not be any agency for which eligibility for subsection (d) (4) procedures depends on the method of computation. In making the required computation the agency may presumably confine its consideration to whether the subject matter of the meetings surveyed was within the enumerated exemptions; it need not make a retrospective determination as to whether closure would have been in the public interest. 29See regulations of the Commodity Futures Trading Commission, 42 F.R. 13703, n. 4; and proposed regulations of the National Labor Relations Board, 42 F.R. 5106. 30See testimony of Rep. Abzug, House Judiciary Committee Hearings, 18. GOVERNMENT IN THE SUNSHINE ACT Documentary Justification. An agency invoking subsection (d)(4) should set out in documentary detail in its regulation (or preambular statement) exactly how it made its computation. The legislative history is clear that such documentary justification is necessary in order for an agency to demonstrate its legitimate reliance on the expedited closing procedures. Thus, the Senate Report notes that "the regulations should fully document, on the basis of the past history of agency meetings, the likelihood that [the agency] will have to close a majority of its meetings pursuant to [exemptions (4), (8), (9) (A), or (10)]. The regulation should also specify in detail the types of meetings to which the regulations apply and which exemption is relied upon as the grounds for closing each type of meeting." S. Rept., 29. Of the 18 agencies invoking the expedited closing procedures of subsection (d) (4), only a few fully explain and document how they calculated the "majority" for purposes of (d)(4), what the basis is for their reliance on the subsection, and what types of meetings will be affected.31 An agency's determination that it is eligible to invoke subsection (d)(4) should be periodically reexamined in the light of current experience.32 As the Senate Report notes: "Even if it could close a majority of its meetings, an agency should examine whether it will really need to close such a large number of its meetings under the specific [(d) (4) exemptions]. Full recognition must be given to the fact that this bill establishes a new principle of openness that is equally applicable to all agencies." S. Rept., 29. 31 For a detailed explanation, see the regulation of the United States Parole Commission, 28 C.F.R. §16.205, 42 F.R. 14715. See also House Judiciary Oversight Hearing, 56-57, for the Federal Trade Commission's explanation. 32Such a review has been promised by the Postal Rate Commission, 42 F.R. 13288. |