General Counsel Certification August. 11, 1977 I hereby certify that an administrative meeting to follow the Commission's regular public meeting on August 11, 1977 may be closed to the public pursuant to 5 U.S.C. 552b and 18 CFR S 1.3a (d). The purpose of the closed meeting is to discuss pending civil litigation; the initiation, conduct or disposition of pending agency actions subject to the procedures of 5 U.S.C. 554 or otherwise involving a determination on-the-record after opportunity for a hearing; internal personnel rules and practices of the Commission; and other administrative matters which may be properly closed to the public. Thus, meeting falls within the exemptions to the open meeting requirements, including 5 U.S.C. 552b (c) (2), (9) (B), and (10); 18 CFR § 1.3a (d) (ii), (ix) (B), and (x). Best Werdie Robert W. Perdue September 15, 1977 Acting General Counsel Certification I hereby certify that an administrative meeting to follow the Commission's regular public meeting on September 16, 1977 may be closed to the public pursuant The purpose to 5 U.S.C. 552b and 18 CFR § 1.3a (d). of the closed meeting is to discuss pending civil litigation; the initiation, conduct or proposition of pending agency actions subject to the procedures of 5 U.S.C. 554 or otherwise involving a determination on-the-record after opportunity for a hearing; internal personnel rules and practices of the Commission; and other administrative matters which may be properly closed to the public. Thus, meeting falls within the exemptions to the open meeting requirements, including 5 U.S.C. 552b (c)(2), (9) (B), and (10); 18 CFR § 1.3a (d) (ii), (ix) (B), and (x). Robert W. Perdue Acting General Counsel APPENDIX D October 18, 1977 Acting General Counsel "Certification I hereby certify that an administrative meeting to follow the Commission's regular. public meeting on September 16, 1977 may be closed to the public pursuant to 5 U.S.C. 552b and 18 CFR § 1.3a (d). The purpose of the closed meeting is to discuss pending civil litigation; the initiation, conduct or proposition of pending agency actions subject to the procedures of 5 U.S.C. 554 or otherwise involving a determination on-the-record after opportunity for a hearing; internal personnel rules and practices of the Commission; and other administrative matters which may be properly closed to the public. Thus, meeting falls within the exemptions to the open meeting requirements, including 5 U.S.C. 552b (c) (2), (9) (B), and (10); 18 CFR § 1.3a (d) (ii), (ix) (B), and (x). Robert W. Perdue Acting General Counsel November 17, 1977 CERTIFICATION OF GENERAL COUNSEL I certify that the Federal Energy Regulatory Commission is authorized under 5 U.S.C. 552b(c)(10) to consider in a closed meeting matters relating to the Commission's position on consideration of the application for certiorari to the Supreme Court in Greene County Planning Board INTERSTATE COMMERCE COMMISSION Senator CHILES. Our next witness will be Mr. Daniel O'Neal, Chairman of the Interstate Commerce Commission. Mr. O'Neal has been with the Commission since 1973, and has served on all the Commission's divisions, and was the agency's Vice Chairman in 1975. Mr. O'Neal, we thank you for taking time to be with us this morning. We will insert your prepared statement in the record in full. We will appreciate it if you would now summarize that statement for us. TESTIMONY OF DANIEL O'NEAL, CHAIRMAN OF THE INTERSTATE COMMERCE COMMISSION; ACCOMPANIED BY MARK EVANS, GENERAL COUNSEL Mr. O'NEAL. Yes, sir, we have a longer statement, Mr. Chairman, that we have submitted for the record. I am pleased to be here today to present the views of the Interstate Commerce Commission on the Sunshine Act. Our experience since the act took effect 9 months ago has been favorable. Although the provisions of the act have limited, to a certain extent, some of our prior flexibility in terms of the timing and agenda of our meetings, we have had no serious problems of implementation. The vast maority of our meetings since March of this year have been open to the public, and many have been attended by the public and members of the media. The act has gone far toward achieving the congressional purpose of increasing the public awareness of, and confidence in, the decisionmaking process. Shortly after it was signed into law, the Commission moved to implement both the spirit and the letter of the act. We believe that our sunshine regulations and our interpretation of them with respect to specific meetings clearly illustrate that the Commission has willingly complied with the act's provisions. Since our regulations were adopted, 81 percent of all meetings held by the Commission and its divisions have been completely open to public scrutiny, and portions of some of the remaining 19 percent of our meetings also have been open. Not only have most of our recent meetings been open, but also there have probably been more total meetings since implementation of the act. It certainly has not created major impediments to our holding meetings. Although the number of meetings we hold has been rising, I must mention that notation voting-voting in writing without a meeting being held-is still the principal means through which we dispose of most of our workload. The Commission and its divisions vote on a large number of cases through this technique, and frequently do so on rather short deadlines. We feel that notation voting is a necessary tool to deal with the Commission's workload. In addition to opening most of our meetings, we have voluntarily released the transcripts of several of our closed meetings, even when the act would have permitted us to withhold disclosure of the transcript. The entire transcripts of 4 of the 10 closed Commission meet ings have been released, while 2 of the other transcripts were partially released. One of those released transcripts was of our closed meeting in which we determined to suspend tariffs of the Alaska pipeline system. We were not required to release that transcript, but we determined that the release would serve the public interest and would be of value to all parties with an interest in the case. The Commission has gone beyond the literal requirements of the act in other ways besides the release of the transcripts. For example, the Commission has attempted to disseminate widely our public notices of meetings by maintaining a mailing list of persons who have requested notice of our meetings, and by making copies available to the press, including the trade press. Also, our regulations permit any person to petition the Commission to open a meeting proposed to be closed. Also, I might add, as well, that the Commission has opened its notation votes to the public. including the narrative portion of any vote. Although I believe the Commission has successfully implemented regulations which comply with the provisions of the act with no major problems, we have experienced some difficulties of which I think you should be aware. These relate principally to determining what is or is not a meeting of the Commission within the meaning of the act, and to adapting to the 1-week notice requirement in establishing an agenda for the meetings. As Chairman of the Commission, for example, I have felt an increasing need to meet regularly, but informally, with other members of the Commission to exchange general information concerning matters affecting the agency and to discuss general problems concerning the Commission's operation. For the most part, I would have no hesitation about opening such informal sessions to public observationalthough in all candor I expect that the effectiveness of this kind of meeting would be somewhat reduced if it were exposed to the public. The problem that we see has been one of notice. The act requires f week's advance notice of the subject matter of each meeting. Yet, the kind of informal session that I have in mind does not lend itself to a defined agenda. I am advised that if the discussion of such sessions were kept tentative and exploratory, sessions could be held without attempting to formulate an agenda. Regardless of whether such sessions may properly be considered as outside the act's scope, I am inclined to think we can adequately comply with the act's spirit by publicly announcing at least 1 week in advance that we propose to hold such an informal session-possibly in my personal office over coffee-and that the sessions would be open to the public. Senator CHILES. How much room does your personal office have, and how much coffee do you have? Mr. O'NEAL. We will give it a try, and see how many people show up. Senator CHILES. Well, personally I think that it is good that you would go ahead and publish notice of such a meeting, unless the place where you are going to have it is unavailable to the public and not. really open to them. If so, I think you are running the risk that it is still sort of closed. Your own office might be a little foreboding to people, and might not be. I do not know what your office looks like. Mr. O'NEAL. I do not think my office would be foreboding actually. The thought is that we would like to have some informal exchange of information. There are a lot of things that happen at the Commission that I know about that the rest of the Commissioners do not. I would like to keep them better informed. Senator CHILES. I think those things are valuable. I think they also could be valuable to the public to get some kind of feeling for what is going on. People tend to think, and continuously say there won't be the same kind of a frank discussion if you have public scrutiny. I know something about how human nature is in discussions like that, and after having seen what happened in Florida and up here in our markup sessions, which we used to close, there is no difference in the quality of the discussions. You forget that anybody is around you, and if you have got the courage of your convictions you stand there and argue fully. And if you do not have courage, then you are not worth your salt to start with. But those people that do, before long find that if their voices are going to mean anything, they are going to have to argue their convictions. And the same things that happened before, as far as taking off your coats and calling people by first name, all of those things that people said would all be done away with once we opened up the markup sessions, just have not happened. You go right back to doing business the way you always did it. Mr. O'NEAL. Well, I think our experience has been similar in the regular meetings that the Commission has. I think the first meeting that we had under the Sunshine Act was very quiet, but since we have had more and more experience, the members are much more open in what they say. The only area where there is some restraint is, I think, when you start talking about personnel. Obviously, the framers of this act contemplated that those matters should not be discussed publicly, and sometimes, no matter what you are talking about when you are talking about the work of an agency, you tend to drift off into discussions about personnel. That is what I mean when I say there may be some restraint in that area, and since we do not know what the agenda would be really, we cannot be very specific. It would be difficult to identify what might be closed. So that is really what I am getting at. I really do not think that this is going to be an overwhelming problem, and at least I am willing to try it and see what happens. If we need to make some adjustment, and if we think there needs to be a change in the law or something, we can come back to you with recommendations. In sum, in spite of a few problems, I believe the Commission has properly balanced the right of public access against individual rights and the necessity for efficient and effective performance of its responsibilities. I would like to mention that a thorough review and re-evaluation of our sunshine regulations will take place on or about the anniversary |