V. RECOMMENDATIONS

Agency compliance with the Sunshine Act requires active Presidential leadership and initiative and continuous Congressional oversight. The legislation was vigorously opposed by a number of executive branch and independent agencies prior to its adoption by Congress. These agencies argued that the presence of the press and public at their meetings would inhibit open and candid discussion, impede the progress of their work, and force them to decide controversial matters in secret before official meetings. They proposed every conceivable justification for closing their meetings and lobbied for special exemptions.

It is unrealistic to expect that the agencies which lobbied so vigorously against the enactment of the Sunshine Act will now comply with the letter and spirit of the law. Their past resistance to openness poses a direct challenge to President Carter's commitment to openness in government. Common Cause believes the President and the Congress must take certain specific steps in order to ensure meaningful compliance with the Sunshine Act and to set a new tone of openness in government.

A. Presidential directive

The President should issue a directive to the agencies affirming the Administration's commitment to openness, establishing standards of openness, and requiring that agency regulations conform not only to the letter but also the spirit of the Act.

The directive should emphasize that agencies should close meetings only when there is an overriding public interest in doing so. The Act allows an agency to close a meeting under certain circumstances but does not require it to do so. An agency can decide even where an exemption applies that the public interest is served by openness and outweights the justification for meeting in secret. Many agencies are not following this approach. We believe they should be directed to do so by the President.

B. O.M.B. review

Although agencies have been given flexibility in developing regulations, the Act does not provide for any review of these regulations by any agency of government to determine whether they adequately meet the Act's requirements and spirit.

President Carter should direct the Office of Management and Budget (OMB) to review for the White House each agency's regulations to ensure that they meet high standards of openness. O.M.B.'s approval of the regulations should be based on their compliance with the Presidential directive discussed above. The results of the review, including any recommended changes, should be made available to the public.

C. Oversight hearings

We believe that Congress should hold comprehensive and thorough oversight hearings on agency implementation of the Act. Agencies subject to the requirements of the Act should be called before Congress. They should be required to provide Congress with a tabulation of the total number of meetings closed to the public and the reasons for closing these meetings.

Congress in its oversight function should examine: whether exemptions are being properly used-this should include an examination of the minutes or transcripts of those meetings closed to the public in order to determine whether they legitimately fall within any of the Act's ten exemptions; whether the presumption of openness is being ignored; and whether the Act's exemptions need to be more narrowly written. Special attention should be given to the use of exemptions relating to financial matters.

Congress should also examine whether the expedited closing procedure is being legitimately used by the 17 agencies that have invoked the provision. The Act allows an agency which will be closing a majority of its meetings under certain exemptions to issue regulations for closing these meetings through expedited procedures. Common Cause recognizes that agencies that regulate financial institutions, commodities, or securities, or that have adjudication as a primary responsibility may on occasion need to conduct agency business on short notice and in closed session. However, the use of regulations to close whole categories of meetings should be carefully monitored. Since only a few of the 17 agencies explain how they determined that a majority of their meetings can be anticipated to be closed, Congress should require each agency that wishes

to continue to qualify under this provision to document fully, on the basis of records of meetings over the past several years, that a majority of its meetings do fall within the specified exemptions.

D. Model agency regulations

Appendix D beginning on page 50 of this study is “A Model Agency Regulation To Implement The Government in the Sunshine Act." Although all agencies covered by the Act have promulgated regulations implementing the open meetings provision of the law, Common Cause believes that each agency should periodically review its existing regulations for possible improvements. Any revision should be based on an evaluation of the agency's as well as the public's experience under existing regulations. Amendments should be designed to further the Act's spirit of openness based on a reasoned and thorough analysis of the legislative history and agency experience under the Act. Where the law permits agency discretion in implementing the Act's open meeting provisions, the Comman Cause model regulation offers a guide to possible revisions in existing agency regulations in order to further the spirit of the Act.

A brief section-by-section analysis of the Common Cause model regulation follows:

1. Purpose: Section 1 generally describes the policy behind the open meetings provisions of the Government in the Sunshine Act. Each agency covered by the Act should affirmatively state the Congressional policy underlying the Act— that the public is entitled to the fullest practicable information regarding the decision-making processes of the Federal Government.

2. Definitions: Section 2 generally defines terms used in the model regulation. The model regulation differs significantly from most agency regulations in its definition of a meeting. The term "meeting" as used in the model regulation reflects the language of the Act by defining the term to include those meetings of the agency itself as well as divisions or committees of the agency where they are authorized to act on the agency's behalf. While it appears from the legislative history that agency committees or subdivisions are covered by the Act, many agency regulations do not apply to these meetings (H. Rept. 94-880, at 7; see also S. Rept. 94-354, at 17-19). It also appears from the legislative history that as a matter of policy agencies are obligated to broadly define meetings in order to further the spirit of the Act. The model regulation has been written to include meetings of committees and subdivisions held to formulate recommendations to the agency as well as briefing sessions attended by at least a quorum of agency members, where the members have an opportunity to ask questions or seek clarification of matters of concern.

3. Notice of meetings: Section 3 of the regulation specifically states the notice requirements each agency must comply with when calling a meeting. This section has been written to encourage the agency to use all reasonable means necessary to ensure that the public is fully informed of all public announcements pursuant to this section.

Public notice of meetings is a significant part of the Act, since meetings are obviously only effectively open to those who have notice of them. However, the Act itself does not describe what is meant by public announcement. The legislative history indicates that more is required than merely publishing a notice in the Federal Register, posting notices on bulletin boards within the agency, and filing copies with the secretary of the agency. The Conference Report stated:

“... means of publicizing such information should include posting notices on the agency's public notice boards, publishing them in publications whose readers may have an interest, and sending them to the individuals on the agency's general mailing list maintained for those who desire to receive such material." (at 19; see also H. Dept., at 14).

This indicates that agencies should publish notice of meetings in the periodicals of groups that would be affected by decisions made during those meetings. Agencies should establish mailing lists of individuals or groups that consult with them, including groups that represent consumer interests. Notice of meetings should be sent to those on the list.

Additionally, the Act requires the agency to give public notice at least one week before meetings. This provision does not prohibit an agency from drafting a regulation providing for a longer notice period. The model's provision requiring that at least ten days public notice be given prior to each meeting is offered because the seven day requirement of the Act may not be sufficient to ensure that notices will be published in time for subscribers to the Federal Register to receive them and

make plans to attend agency meetings. Allowing time for publication and mailing, 10 day notice will result in the equivalent of 7 day notice for recipients. In order to ensure that public notice in advance of a meeting is adequate, agencies should attempt to provide longer notice whenever possible.

4. Open meetings: Section 4 of the model regulation generally states that every portion of every meeting of the agency shall be open to public observation. Since the Act does not define public observation, agencies are given some discretion in regulating the kinds of conduct permitted by members of the public at open meetings.

Obviously, public observation does not include the right to interfere in the conduct of the meeting. The Common Cause model regulation has been written to permit the unobtrusive use of sound recorders and photographic equipment.

We believe it to be a questionable practice and a possible violation of the spirit of the Act for agencies to prohibit the use of sound recorders or photographic equipment where their use is unobtrusive. Allowing the use of photographic equipment and sound recorders offers the best opportunity for accurate and complete reporting of meetings. The use of these devices would permit a subsequent, more reasoned analysis of the discussion at an open meeting, as well as enhance public understanding of agency proceedings.

Additionally, the model regulation prohibits meetings from being held in places which discriminate on the basis of race, color, creed, national origin, ancestry, religion, or sex.

5. Criteria to close meetings: Pursuant to the provisions of the Act, an agency may close certain types of meetings or portions of meetings under any of the law's ten exemptions to the openness rule. The agency must determine that openness is not in the public interest. In addition to using the language contained in the Act specifying the ten exemptions to the openness rule, Section 5 of the model regulation attempts to define in more specific fashion the kinds of information that are exempt from disclosure where possible.

Sections 5(b) (2), (4), (5), and (6) of the model regulation have been drafted in a more detailed fashion, borrowing heavily from the manner in which courts have interpreted analogous exemptions to public disclosure in the Freedom of Information Act of 1966.

Agencies may wish to further define activities or subject matter exempt from disclosure that pertain to their agency. Agencies, however, should construe those exemptions narrowly in light of recent judicial interpretation of analogous FOIA exemptions and the broad purposes to be served by the open meeting requirements. 6. Procedure to close meetings or limit the disclosure of information: Section 6 establishes the procedures an agency must follow to close a meeting or portions of a meeting and to withold from the public announcements relating to the meeting otherwise required by the Act. To the extent that a person's interests may be directly affected, this section reflects the letter of the Act by permitting any person to petition the agency in writing to close a portion of a meeting pursuant to any of three specific exemption provisions. In addition, the model regulation provides that within one day after an agency votes to close a meeting or portion of a meeting, the general counsel of the agency is responsible for issuing an opinion certifying that the portion or portions of the meeting or series of meetings were properly closed to the public by the agency.

Since the Act does not address the question of whether the general counsel's certification must take place prior to a closed meeting or portion, this provision reflects the Congressional intent that the certification procedure be completed before a closed meeting or portion of a meeting (see S. Rept. 94-1178, at 19).

7. Procedure to open meetings: Section 7 permits any person to make a request that a meeting or portion of a meeting be open. Although this provision is not mandated by the Act, its inclusion in the model regulation is reasonable and consistent with the spirit of the Act. For example, this section permits any agency employee to petition the agency in writing to open a meeting or portions which might otherwise be closed if that employee's appointment, employment, or dismissal is the subject of the meeting or portion. The agency will be required to open the meeting upon receipt of a petition from the employee. The following language in the Senate Report supports the position that any person may waive his or her personal privacy and request that the meeting be open:

"The main purpose of the examption (6) is to protect an individual's privacy. It would clearly not be appropriate, therefore, to invoke this paragraph when the individual involved prefers the meeting to be open." (S. Rept. 94-354, at 22).

8. Expedited closing procedure: Section 8 is intended for agencies regulating financial institutions, securities, and commodities as well as agencies the primary or sole responsibility of which is to conduct adjudicitory proceedings. The provision contained in the model regulation implements subsection (d)(4) of the Act which permits any agency that may properly close a majority of its meetings under expemptions (4), (8), (9)(A), or (10) or any combination of these exemptions to close these meetings by special regulation. The agency does not have to explain its decision to close these meetings and the 7 day notice requirement does not apply. The agency must, however, vote to close these meetings and make a record of the vote available to the public. An agency invoking subsection (d) (4) of the Act should describe in detail its basis for determining that a majority of its meetings will be closed. It is clear from the legislative history that requiring a justification of the use of the expedited closing procedure is reasonable and necessary.

Each agency invoking the expedited closing procedure should periodically examine its use of the provision and issue justifications for its continued use. As the legislative history indicates:

"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. No. 94-354, at 29).

9. Recordkeeping requirements: This section requires each agency to maintain a complete transcript or electronic recording of each meeting closed to the public. The Act permits an agency which closes a meeting or portion of a meeting pursuant to exemptions (8), (9a), or (10) to maintain a transcript, recording, or minutes. Common Cause believes the maintenance of minutes may be inadequate, particularly where an action is brought in federal district court to enforce the requirements of the Act. Minutes are highly subjective and sometimes do not reflect the actual conduct of a meeting. To ensure that the court has access to the fullest possible information in order to determine whether an agency has in fact properly closed a meeting, each agency should maintain a transcript or recording of each meeting or portion closed to the public.

Additionally, this section requires that minutes be kept of each open meeting. This provision furthers the policy of the Act which declares that the "public is entitled to the fullest practicable information regarding the decisionmaking processes of the Federal Government." The fact that a meeting is open to the public in no way guarantees that all interested members of the public will be able to attend. Minutes are essential.

Records are to be kept of all matters of a routine nature that are disposed of by notational voting. Matters of a routine nature include the placing of an item on the agenda, selecting the time, date, and location of a meeting, or reviewing a request to open or close a meeting. These records are to be indexed and made available in the same fashion as records of closed meetings. The regulations provide that decisions of a substantive nature or significant procedural decisions may not be made by notational voting.

10. Public availability of records and other documents: Section 10 implements the spirit of the legislative history that agencies are expected to make the meeting record materials available promptly in anticipation of the receipt of public requests for these materials. A large number of agency regulations, however, provide for the availability of and access to non-exempted material only upon request. Those regulations providing for the availability of non-exempted material "upon request" place the burden on the public. This would appear inconsistent with the Act which places the burden on the agency to review its meeting records to determine what can be released. As the legislative history indicates: "The transcripts and recordings that may be made public must be promptly placed in a public document room. The agency must do this on its own initiative, rather than waiting until it receives a particular request." (S. Rept. No. 94-354, at 32).

This burden is consistent with the burden imposed on the agency to justify its closed meetings and the withholding of information.

Additionally, Section 10 of the regulation provides an appeals process from an initial determination by the agency to withhold materials under Section 5.

APPENDIX A

HIGHLIGHTS OF THE LEGISLATIVE HISTORY1

The Government in the Sunshine Act was introduced during the 92nd Congress on August 4, 1976 by Senator Lawton Chiles (D-Fla.). A companion bill was introduced in the House by Representative Dante Fascell (D-Fla.). The measure, with certain exceptions, provided that all meetings of any government agency at which official business is transacted must be open to the public.

A more comprehensive and expanded version of the original legislation with bipartisan co-sponsorship was introduced at the start of the 93d Congress by Senator Chiles. The companion bill to the expanded Senate version was offered in the House by Representative Fascell in August of 1973.

Nearly a year passed before hearings were held on the legislation by the Subcommittee on Reorganization, Research, and Internal Organizations of the Senate Government Operations Committee. Testimony was received by the Subcommittee from a number of public officials and public interest representatives, including Common Cause. Several months later, in the fall of 1974, the Subcommittee heard from officials representing the views of federal agencies, including the Interstate Commerce Commission, Civil Aeronautics Board, and the Securities and Exchange Commission.

During the 94th Congress, the proposal was again introduced by Senator Chiles and referred to the Subcommittee on Federal Spending Practices, Efficiency, and Open Government of the Committee on Government Operations. The bill was eventually reported out favorably by the full committee with a number of modifications. Most notable was the narrowing of the scope of the bill to cover only those multi-member agencies headed by persons appointed by the President with the advice and consent of the Senate. Further amendments were added specifying additional grounds justifying the closing of meetings.

The legislation was then referred to the Senate Committee on Rules and Administration and the Committee on the Judiciary. Judiciary agreed to report the bill with the right to amend on the floor. At the insistence of then Majority Whip Robert C. Byrd (D-W. Va.), the Rules Committee divided the Sunshine Act in two, with one bill applying only to executive agencies and a separate resolution covering Senate committees (S. Res. 9).

The Rules Committee then voted to maintain the status quo on Congressional committee meetings. Instead of requiring open meetings it recommended that each Senate Committee determine at the start of every Congress its own policy toward open and closed meetings.

This recommendation became known as the Rules Committee substitute. When it was brought to the floor of the Senate on November 5, 1975, Senator Byrd and other Rules Committee members were sharply rebuffed. In a rare defeat for Senator Byrd, advocates of sunshine and a strong open meeting rule defeated the Rules Committee substitute by a lopsided 77-16 vote. The Senate passed both the resolution (S. Res. 9) and the Sunshine Act (S. 5) by unanimous votes of 94-0.

On the House side, Representative Bella Abzug (D-N.Y.) introduced a slightly revised version of the earlier Fascell measure. It was referred to the Subcommittee on Government Information and Individual Rights of the Committee on Government Operations chaired by Abzug. Following hearings, the bill was reported out favorably by the full committee.

1 The Senate and House Committees on Government Operations have jointly issued a source book on the Government in the Sunshine Act. A compilation of legislative history materials, the joint committee print is entitled Government in the Sunshine Act-S.5 (Public Law 94-409)-Source Book: Legislative History, Texts, and Other Documents. It may be purchased from the U.S. Government Printing Office, Washington, D.C. 20402. Key documents in the legislative history of the Act follow:

House Reports: No. 94-880, Pt. 1 and No. 94-889, Pt. 2, accompanying H.R. 11656 (Comm. on Government Operations) and No. 94-1441 (Comm. of Conference).

Senate Reports: No 94-354 (Comm. on Government Operations), No. 94-381 (Comm. on Rules and Administration) and No. 94-1178 (Comm. of Conference).

Congressional Record: Vol. 121 (1975): Nov. 5, 6, considered and passed Senate. Vol. 122 (1976) July 28, considered and passed House, amended, in lieu of H.R. 11656. Aug. 31, House and Senate agreed to conference report.

Weekly compilation of presidential documents: vol. 12, No. 38 (1978): Sept. 13, Presidential statement.