ADMINISTRATIVE CONFERENCE OF THE UNITED STATES

Senator CHILES. Our next witness will be Mr. Richard Berg, Executive Secretary of the Administrative Conference of the United States. Under the Government Sunshine Act, the administrative conference is assigned with assisting agencies subject to the act in carrying out their duties. This morning we anticipate hearing the results of those consultations and hearing what the Conference has done to assist and guide the agencies in carrying out the law.

TESTIMONY OF RICHARD K. BERG, EXECUTIVE SECRETARY, ADMINISTRATIVE CONFERENCE OF THE UNITED STATES, ACCOMPANIED BY STEPHEN KLITZMAN, STAFF ATTORNEY Mr. BERG. Thank you, Mr. Chairman.

I am Richard Berg, Executive Secretary of the Administrative Conference of the United States, I would like to present my colleague, Stephen Klitzman, who has worked with me on all Sunshine Act matters from the very beginning.

Senator CHILES. Thank you, sir. We will include your statement in full in our record, and we would appreciate it very much, in the interest of time, if you could digest that.

Mr. BERG. Well, I will certainly do so.

I would like at the start to emphasize one point both about my testimony today and the interpretive guide that has been cited in the hearing earlier.

The Conference is a body of 90 members which operates in parliamentary fashion. The activities with respect to the Sunshine Act have been performed by the staff of the Office of the Chairman.

I am testifying on behalf of the chairman's office, and the interpretive guide is a publication, will be a publication of the chairman's office, and in neither case does this necessarily represent the views of the full body, which has never had an opportunity to pass on the sunshine matters.

Now, the act required in the 6 months between the enactment of the Sunshine Act and its taking effect that the agencies promulgate regulations after consultation with the chairman's office, with our office. Pursuant to the mandate of the act we engaged in these consultations with nearly all of the 47 affected agencies through informal meetings, through circulation of draft regulations and other material, through commenting in writing and orally on their regulations, and through responding to their questions. We also attempted to serve as a clearinghouse for Sunshine Act information, and I hope that we performed some service in that respect.

When this consultation activity was at an end, we turned to collecting in a single body of work the substance of our activity and the learning which had been generated. Out of this effort we developed an interpretive guide to the Government in the Sunshine Act, which we circulated in a tentative version last May to all the affected agencies and interested groups and to the staff of this subcommittee.

We received many worthwhile comments, and we have been revising the guide accordingly. We have submitted the final manuscript for publication, and we expect the guide to come out sometime in the

winter. We hope that it will be helpful to the agencies, to Congress, and to the interested public.

We have not, since the effective date in March attempted to act as a watchdog or monitor on implementation of sunshine. We are not prepared to discuss the experience of agencies generally or of particular agencies under sunshine. Fortunately, a number of significant agencies have testified already.

On the basis of our work, though, we can point to a number of particular problem areas which occur to us as worthy of attention. These are in the general categories of public observation, public understanding, public notice, and public access.

The questions about public observation have been alluded to in the hearing earlier, principally, the question whether recording and photography will be allowed at agency open meetings. We have pointed out to the agencies the relevance of Administrative Conference Recommendation 72-1, Broadcast of Agency Proceedings [CFR § 305.721], which I might add, was adopted in 1972, not with sunshine particularly in mind, but with a view premised on the belief that media coverage of administrative proceedings would enhance public understanding of such proceedings, and should be encouraged subject to appropriate limitations and controls.

The Department of Justice has also urged the agencies to permit nonobtrusive sound recordings as well as the taking of notes and nonflash pictures. I do not believe there has been any problem about the taking of notes.

With respect to public understanding, this is also a question that a number of previous witnesses have touched upon. If, in the course of meetings, the agency personnel obscure the discussion with a mass of jargon and statutory citations, then much of the value of the open meeting provision will be lost. At least a few agencies have taken positive steps to assist members of the public to understand and follow the course of their meetings.

A number of the agencies have testified as to their experience in this regard. In addition, I would like to point to the Federal Communications Commission, which has published a brochure entitled "A Guide to Open Meetings." This details room arrangements, locating key personnel, describes voting procedures and terminology, and offers other information about Commission procedures. The International Trade Commission has also taken steps in this direction.

In fairness to the agencies, it should be recognized that they frequently deal with highly specialized subject matter, and they cannot be expected to make complex matters simple for the benefit of members of the general public.

Indeed, I suggest that the agencies' principal goal should be to make their proceedings comprehensible to members of the interested public, that is to say, those who have followed the course of the agencies' business and are familiar with the general nature of the agencies' work.

I suspect that those are, in fact, the people who are attending these meetings. It would probably be useful for agencies to have more specific information about exactly who their publics are because this will, of course, affect the amount and nature of the information that they make available to the public who attend.

There have been questions about public notice. To make meaningful the right to attend an agency meeting, we have pointed out to the agencies that the Sunshine Act encourages the widest possible circulation of meeting information. There is a requirement for publication in the Federal Register, but this, in many cases, because of the time factor, will be inadequate notice, and the agencies have been made aware of the fact that Federal Register publication is only part of their duty of public notice. We have encouraged them and this committee has encouraged them to use their imaginations in finding other means of communicating with their interested public.

Here again, it is important for the agencies to know who their interested publics are.

The timing of agency notices, the 7-day requirement is that the agencies must submit notice to the Federal Register 7 days in advance of the meeting.

Of course, this does not mean that the notice will appear in the Federal Register 7 days in advance. In fact, there is frequently a 3or 4-day lag, and to deal with this problem, the Federal Register people have been imaginative, I think, in working with the agencies on methods of speeding up the transmission. There is, in my testimony, reference to a short-form notice which can be sent, by telecopy equipment or by hand delivery, which will cut down on the turnaround time between submission and publication.

However, you do lose on the amount of information which can go into the notice, and I think that part of the problem which has been alluded to in the testimony earlier about the failure of the agencies adequately to explain the grounds for closing has arisen from the fact that the so-called short-form notice contains the bare minimum of what the statute requires. The statute does not require that the Federal Register notice include the ground for closing, but merely whether or not the meeting is to be closed.

Of course, the notice does include the name and phone number of the contact person, so anyone who has any interest in knowing why a particular meeting is being closed can find out by making a phone call.

I think that this problem has led to a certain amount of misunderstanding.

Finally, I would like just to touch upon the question of public access to meeting records. The act requires, as you know, that recordings or transcripts be made of all closed meetings, and that thereafter the agency must make all nonexempt materials available to the public.

There has been a question and a divergence of views in the agency regulations as to whether the agencies must go through the process of, in effect, declassifying the transcript or the recording in advance, or only upon request of members of the interested public. We have pointed out to the agencies, and I think the legislative history is very clear on this point, that there is a positive duty to go through this material as promptly as possible upon completion of the meeting, and to make that material public, available to the public, and not simply wait for a request.

A number of agencies, particularly the smaller agencies where there has not been a great demand for access to those materials, feel that

this may be somewhat unreasonable, but the act and the legislative history seem to us to be clear in imposing that responsibility.

Finally, there has been a fairly technical problem as to the interaction of the procedures of the Freedom of Information Act and the Sunshine Act.

We gave considerable thought to this problem in the course of our perfecting the guide, and it is our conclusion that with respect to the processing of requests for access to transcripts and recordings, the agency should apply Freedom of Information Act procedures rather than devise procedures relying solely on the Sunshine Act.

The principal point of difference here will be the question of the time limitations. The Sunshine Act provides no specific time limitations on handling requests for access. The Freedom of Information. Act does. The Freedom of Information Act time limits should be applied.

These are just a few of the legal and technical problems that we see, and by working with the agencies we have attempted to be helpful and hope to continue to be helpful. We look forward to working with this subcommittee in any future evaluation and amendment of the Sunshine Act.

Thank you.

Senator CHILES. Thank you.

A MEETING IS A MEETING IS A MEETING

...

I note that the Administrative Conference has narrowly construed the definition of meeting. I just wonder if there is a difference between the definition as set forth in the Administrative Conference's writings and the definition of meeting that Barbara Babcock, an Assistant Attorney General, sent a letter to the agencies on April 19, in which she wrote that several agencies define the term meeting in such a way as to limit the joint deliberations which are subject to the act. She goes on to urge agencies to avoid ultimately fruitless litigation and take a broad view of what constitutes a meeting. Thus she suggests that the term meeting is broadly defined.

It would appear that they are taking a more broad definition of what constitutes a meeting than your interpretation.

I was wondering if you agree with that. I notice, for example, the preliminary deliberations, briefings, all those items are pretty well covered within the definition of meeting.

Mr. BERG. Senator, I am aware of the Department of Justice letter. In fact, in fairness to all concerned, we have included it as an appendix in the final version of our guide, but I must say, I do disagree with it. I think that it does not give adequate consideration to the lengthy and the tortuous legislative history that went into formulating the definition of meeting.

The term "meeting" is defined as "deliberations" of the required number of agency members, "where such deliberations determine or result in the joint conduct or disposition of official agency business." And practically legislative history.

very word there was wrestled over in the course of the

The proposition which I think is the alternative proposition, alternative to our definition, is the proposition that any discussion of

agency business by a quorum is a meeting. If that is what was meant, there was a lot easier way to say it. But, in fact, the term "deliberations" is used, and in the legislative history given some weight. The term "joint conduct" is used and given some weight. The terminology, "determine or result in," was substituted in conference for the term "concern," and the legislative history indicates that all these word choices were made in attempts to narrow somewhat the concept of "meeting," with the idea, as I understand it, of focusing in on the exchanges which lead to the agency decisions, which are primarily directed to the agency decisions and part of the decisionmaking process. It seems to me, therefore, that it is clear that there was some attempt to exclude very preliminary exchanges. There is this passage in the Senate report [p. 19] which a previous witness referred to-concededly referring to discussions between two members-which lends credit to the view that preliminary discussions are not within the meaning of the definition of meeting.

Senator CHILES. Well, you state in the guide that your treatment of meetings has much to recommend it in terms of the practical problems of the day-to-day operations in agencies.

Mr. BERG. That is true. I certainly try to keep in mind the practical problems.

Senator CHILES. Well, I do not think the purpose of the act was really to take care of the day-to-day operations of the agencies. I think the overall purpose of the act, the overriding purpose, is to open up Government. If I would have issue with the definition, it would be that you have gone further to accommodate the day-to-day practical operations of the agencies, rather than to err on the side of openness. Mr. BERG. Well, the question of what they should do when in doubt is one thing, and I would fully agree that when in doubt, the act encourages them to err on the side of openness, and this is true with respect to briefings and all these other categories.

But before you can be in doubt, you have to have some idea of where the line is that you are in doubt about, and I think that before the agencies can focus in on these close questions of what is a meeting and what is not a meeting, you have to have some idea of where the line of demarcation is. Otherwise, your doubts will keep proceeding further and further to the outer limits.

There are practical needs. There are particularly practical needs in the case of the three-member agencies. We had witnesses from a threemember agency here this morning. There are many of these agencies. I presume that you get two members talking to each other, and you do not want to encourage them to talk about something frivolous. It would be nice if they spent their working day focusing in on working matters. So, how do you handle these things if you take the position that every discussion of agency business, however preliminary, is a meeting? How do the agencies live with this? I confess I do not know.

Senator CHILES. Well, maybe that is what we are going to find out more about, if we ever get any litigation on this subject. We thank you very much for your testimony today, and your work with regard to the act.

[The prepared statement of Mr. Berg follows:]

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