EX PARTE COMMUNICATIONS In addition, to the line of judicial decisions owing its origin to the Pillsbury decision, supra, recent amendments to the ex parte prohibitions under the Administrative Procedure Act also have great legal importance to the conduct of Congressional oversight investigations. 50/ In 1976 Congress enacted the Government in the Sunshine Act, which among other things, amended the requirements under the Administrative Procedure Act, 5 U.S. Code 557(d)(1) relating to ex parte communications to provide that such communications could not be made by public officials during formal rulemaking or adjudication. It provides that: (d)(1) In any agency proceeding which is (A) no interested person outside the (B) no member of the body comprising (C) a member of the body comprising 50/ Public Law 94-409, 90 Stat. 1241 (September 13, 1976). made, a communication prohibited by this (1) all such written communications: (D) upon receipt of a communication (E) the prohibitions of this sub- (2) This subsection does not constitute auth- In addition, the term "ex parte communication" was defined to mean "an oral or written communication 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 proceed51/ And the Sunshine Act further provided ing covered by this subchapter." that "[t]he agency may, to the extent consistent with the interests of justice and the policy of the underlying statutes administered by the agency, consider a violation of section 557(d) of this title sufficient grounds for a decision adverse to a party who has knowingly committed 52/ such violation or knowingly caused such violation to occur." In short, the Sunshine Act prohibited communication both to and from agency decisionmakers covered by the Administrative Procedure Act in connection with certain pending hearing proceedings, except where such communications are on the record of the proceeding. The language, when read literally, appears to apply as an absolute prohibition, in that "no interested person outside the agency" could make ex parte communications. The legislative history of the Sunshine Act provides support for the view that "interested persons" should be read to include governmental officials, including members of Congress. In its initial report on H.R. 11656, the House Committee on Government Operations made the following explanatory comments about the provision relating to ex parte communications in the House bill: The purpose of the provisions of the bill prohibiting ex parte communications is to insure that agency decisions required to be made on a public record are not influenced by private, off-the-record communications from those personally interested in the outcome. 53/ 51/ 5 U.S. Code Section 551(4). 52/ 5 U.S. Code Section 556(d). 53/ House Report No. 94-880 (Part I), 94th Cong., 1st Sess. (1976), at p. 2. At page 4, the House Report provides this summary of the ex parte communications provisions: Ex Parte Communications Section 4 of the bill would enact a general prohibition on ex parte communications between agency decisionmaking personnel, including commissioners and administrative law judges, and outside persons having an interest in the outcome of a pending proceeding. These provisions would apply to executive agencies without regard to whether they are headed by a collegial body or a single individual. The communications prohibited by the ex parte section would include only those relative to the merits of the proceeding. Thus, an inquiry of an agency clerk as to the procedural status of an adjudication or rulemaking matter would not be unlawful under the bill. A violation of the prohibition could result in sanctions up to and including loss of the proceeding on the merits (as under existing case law). See, e.g., Jacksonville Broadcasting Corp. v. FCC, 348 F.2d 75 (D.C. Cir.), cert. denied, 382 U.S. 893 (1965). Later in the report, the comments made in the section-by-section analysis of the bill indicated the breadth of intended inclusion through the use of the term "interested person": The term "interested persons" is intended [Emphasis added] 541 54/ Id., at 19. Thus the Report could conclude, as it did, that the prohibition applies to Members of Congress. communications relative to the merits apply to communications from Mem bers of Congress, they are not intended to prohibit routine inquiries or 55/ referrals on constituent correspondence. Much the same analysis was made of the provision by the House Judiciary Committee, to which the bill was jointly referred. In Part II, of House Report No. 94-880, prepared by the House Judiciary Committee a similar summary begins at page 17. The legislative history of the ex parte communication prohibitions in the Sunshine Act clearly indicates that Members of Congress were intended to be included within the term "interested persons" and would thereby be subject to the prohibition against ex parte communications with the covered agencies. Thus, the application of the prohibition to the legislative branch of the government was clearly intended. Contacts by "public officials," in the words of the two House reports, were as equally forbidden as contacts by those with financial or other interests. In the setting of a congressional hearing, the discussion of covered pending proceedings by either the decisionmaker from an agency or by congressional members or personnel would appear to constitute forbidden ex parte communications. It must be recalled that the purpose of the Sunshine Act was to require decisions of government to be made in the open. Thus, even though the prohibition against ex parte communications might be generally 55/ Id., at 21. |