The handling of requests for meeting records raises another fairly technical problem - the interrelationsnip of the Sunshine Act and the Freedom of Information Act. Subsection (k) in the Sunshine Act says, of course, that nothing in the open meeting provisions of the Act "expands or limits" rights under the Freedom of Information Act, except that the Sunshine Act exemptions rather than the FOIA exemptions shall govern the disposition of requests for meeting record material. Now there has been some disagreement among the agencies as to whether the procedures for handling Freedom of Information Act requests should be applied to these requests under the Sunshine Act. Some agency regulations expressly refer to or incorporate FOIA procedures, others set up a separate set of procedures, while still others do not really say how they plan to handle requests for meeting record materials. The principal question at issue here is whether the time limits in the FOIA for handling requests tion and 20 working days on appeal - 10 working days for initial disposiwill apply to Sunshine Act requests. We did not advise the agencies on this point last winter and it was not dealt with in the tentative version of our Guide. However, we have come to the conclusion that FOIA procedures, both at the agency level and on judicial review, should govern these requests for meeting records. We believe this is what Congress intended, and we do not see that the result creates any particular practical problems. This is not to say that the agencies must process requests for meeting records in precisely the same way they process ordinary FOIA requests. do believe that their procedures must accord with the requirements, particularly the time limits, of the FOIA. Conclusion. But we These are just a few of the legal and practical problems we have identified as part of our consultative role in the promulgation of regulations implementing the Government in the Sunshine Act. We have attempted to be as helpful as possible to the agencies and to the cognizant Committees of Congress, and we believe our Interpretive Guide will be of additional assistance. Finally, we look forward to working with the Subcommittee on Federal Spending Practices and Open Government and the Committee on Governmental Affairs in any future evaluation and amendment of the Government in the Sunshine Act. OFFICE OF MANAGEMENT AND BUDGET Senator CHILES. Our final witness today is Mr. Wayne Granquist, Associate Director for Administrative Management in the Office of Management and Budget. It would seem to me that if there is any message from previous witnesses, it would be that there is a firm need for guidance and management. Frankly, I am pleased to hear what guidance we are going to receive. TESTIMONY OF WAYNE GRANQUIST, ASSOCIATE DIRECTOR FOR ADMINISTRATIVE MANAGEMENT, OFFICE OF MANAGEMENT AND BUDGET, ACCOMPANIED BY ROBERT BEDELL, ASSOCIATE GENERAL COUNSEL Mr. GRANQUIST. Thank you, Mr. Chairman. With me today is Mr. Robert Bedell, Associate General Counsel. We are pleased to be here today to discuss the Government Sunshine Act and to answer questions that the subcommittee may have. As the prime sponsor of this legislation, you, Mr. Chairman, know of this administration's longstanding interest and involvement with the field of information practices, including the Government in the Sunshine Act. As you know, long before he became President, President Carter endorsed the concept of more "sunshine" on our Government's processes. His commitment to that principle is fundamental. For President Carter, the openness of our governmental processes is not a procedural hurdle to be dealt with during decisionmaking, it is an essential element of his approach to governing. In an address before the Federal Bar Association in May-at which I believe you also spoke, Mr. Chairman-Robert J. Lipshutz, the President's Counsel, summarized President Carter's views on openness as follows: Plainly if you believe in the competence and compassion of the American people, you will want to remove whatever barriers separate those people from their government. One of those is secrecy-that secrecy which too often arises from fear of the people's good sense and judgment. The Government in the Sunshine Act was enacted in the fall 1976 and became effective this past March. Its purposes are as bold and revolutionary for the meetings of those agencies it covers, as the Freedom of Information Act was over 10 years ago with regard to the availability of Government records. Like the Freedom of Information Act in another area, the Government in the Sunshine Act stands on its head the previous general policy of these agencies by declaring that their business meetings shall be open to and for-the public, unless one of the specific statutory grounds for closing is found to exist and is also determined to override the public interest in holding a meeting in the sunshine. No one expected that this fundamental change in the way the covered agencies conducted their business would occur overnight or without continual diligence. It is apparent, in that regard, that the commitment you demonstrated during the passage of the legislation has not diminished with its signing. These hearings should accomplish much in determining what changes in procedure or regulation would better implement the purposes of the act. Our view of the agency implemen tation has been limited, but our initial impression is that although much has been done, we can and should expect more. Our impression also is that the difficulties lie less with the wording of the act than they do with the attitudes of some agencies toward the act's implementation. Statistical representations of the number of meetings held, open, closed or partially closed cannot answer all questions about the implementation of the act. Exemptions were clearly spelled out in the legislation. Nevertheless, the first quarter operating statistics compiled by Common Cause and published in its report of September 1977, "Shadows Over the Sunshine Act," reinforce the need to watch. carefully for a trend to a greater proportion of open meetings. This administration is totally committed to the goals and principles of the Government in the Sunshine Act. We shall follow the implementation of the act carefully and continue to review the performance of covered agencies. It is our hope. that in the near future the statistics with regard to agency performance will obviate the need for major changes. We at OMB shall keep in close touch with these developments and will be anxious to continue to work with you and your staff on this legislation. Like the related Freedom of Information Act, the Federal Advisory Committee Act, and the Privacy Act of 1974, the Government in the Sunshine Act relies on each agency to interpret and implement their provisions. The Advisory Committee Act and the Privacy Act, however, provide for a single agency to assume some oversight role and to issue interpretive guidelines. We would consider organizational alternatives such as this to be appropriate for inclusion in the Sunshine Act should agency performance over a longer period of time prove unsatisfactory. We would urge caution, however, in moving too quickly with such organizational changes, since the Sunshine Act recognizes, by addressing itself to each agency, that the differing circumstances in which each agency operates make general solutions difficult. It seems to us, also, that the overall goal of this legislation and the President's commitment to openness in Government is best served by insuring that each agency make openness an integral part of its procedures and be held accountable for its actions in that regard. We would be concerned that the covered agencies not view the act as the fundamental responsibility of an organization other than itself. That, after all, is the principle of Cabinet government so often stated by President Carter-that his appointees are responsible and accountable for carrying out their programs in accordance with the policies of the administration and the clear intent of the Congress and the law. I will be pleased to respond to questions, Mr. Chairman. Thank you. Senator CHILES. Mr. Granquist. I asked most of the other witnesses if they would give me a brief summary of their statements, and put their statements in full in the record, so we would have time to ask questions. I did not have to make that request of you because your statement was not quite that full. I am delighted to hear the continuation of the President's commitment to open Government and to sunshine. I must say that I am tremendously disappointed to find that we are going to take a cautious approach. How long would an administration that is elected for 4 years be cautious? We are now one-fourth through that administration. We are into the month of December now, and I wonder how long we have to be cautious. I read your remarks, and then I look and see a transcript of "Meet the Press" with guest Jimmy Carter, Presidential Candidate. This occurred on July 11, 1976. In answer to a question Jimmy Carter, then candidate for the Presidency, said that he would have the strongest possible commitment as President to protect the right of the press to speak freely. He said: I favor strong sunshine laws. One of the first acts I intend to take if I am elected President is by executive order to open up as many of the deliberations of the Executive Branch of Government as possible, and I would join in with the efforts that have been pursued by Senator Stone and Senator Lawton Chiles of Florida and others to pass a comprehensive sunshine law for the whole federal government. So everything I do as President will be designed, within the bounds of rationality, to open up the deliberations of government to the people through the press. Senator CHILES. I read that and then I hear words of caution. That concerns me a little bit. You state: We would consider organizational alternatives such as this to be appropriate should agency performance over a longer period of time prove unsatisfactory. We would urge caution, however, in moving too quickly with such organizational changes. This is followed by language on the principle of Cabinet Govern ment. Everybody has to stand on his own. What this act needs is some Executive leadership. What I thought we were going to get from this President was that kind of Executive leadership. I do not find that in the statement that you have given me today from OBM. Mr. GRANQUIST. Let me distinguish between two matters, Mr. Chairman. I did not come here, obviously, to defend the administration's record in the broadest concept of "openness of Government." I can give you a couple of examples that I am personally familiar with, and that we are working with at OMB. One, is the President's reorganization project, some efforts of which I have under my jurisdiction. There we are working in a very open manner. We are holding public meetings and consulting openly with a broad range of the public and the Congress. Another example of the openness of this administration is the fact that we have just published in the Federal Register this week for the first time, I believe, in history, a draft Executive order which we would hope to issue later this year on regulatory policy and process. The goal of that Executive order, which has been approved by the President in principle, is to indeed open the regulatory process to the public interest. It will require that agendas of regulatory actions be published semiannually, it will ask that the public be fully informed of progress made in regulatory activity, by asking that work plans be utilized in managing that process, and that the general thrust of regulatory activity be one that involves public participation. In terms of the implementation of the Sunshine Act itself, the thrust of my remarks is really this: We would like to continue to work with your committee to see if, in fact, the trend is a trend towards closing committee meetings and see if there are institutional changes we |