- - - Are the exemptions being properly used? Do the exemptions need to be more narrowly written? Are agencies ignoring the presumption of openness? Is the expedited closing procedure being used properly Included in our study is a model regulation designed 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. based on an evaluation of the agency's Any revision should be - as well as the public's Amendments should be experience under existing regulations. 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 Common Cause model regulation offers a guide to possible revisions in existing agency regulations in order to further the spirit of the Act. Mr. Chairman, the American public has a vital interest in open agency decision-making. These agencies make decisions which The affect all Americans in specific ways, from the quality of television commercials to the price of gas and electricity. successful implementation of the Sunshine Act, creating a truly open process, is the only chance the citizen-consumer-taxpayer has to counter the behind the scenes influence of the special interests. We would be happy to assist you and this Subcommittee in any way we can as you proceed with oversight of the Sunshine Act. DEPARTMENT OF JUSTICE Senator CHILES. Our next witness is Lynne K. Zusman, Chief, Information and Privacy Section, Civil Division, U.S. Department of Justice. The Civil Division has responsibility under the Sunshine Act for defense of litigation. We are glad to welcome the Justice Department here today. Your written statement will be inserted in the record and we would greatly appreciate hearing the Department's views on the Sunshine Act. TESTIMONY OF LYNNE K. ZUSMAN, CHIEF, INFORMATION AND PRIVACY SECTION, CIVIL DIVISION, U.S. DEPARTMENT OF JUSTICE Ms. ZUSMAN. Good morning, Senator. It is a privilege and honor to be here and to be representing the Department of Justice. As I tried to indicate in the statement that we have submitted to the subcommittee, the Department of Justice views the Sunshine Act as a very important part of the concept of openness in Government. Along with our responsibilities in the area of freedom of information and in the area of the Privacy Act we regard the Government in the Sunshine Act as adding an extremely important dimension to the concept of making the maximum disclosure of information about the decisionmaking process of Government available to private citizens. I would like to respectfully bring to your attention a minor correction in your statement that there had been no litigation at all. That is almost 99.44 percent true. We have about half of one lawsuit which was recently filed. I say "half" because it is a very interesting situation where the plaintiff is bringing the action under the Freedom of Information Act as well as the Sunshine Act. The purpose of the lawsuit is to obtain a written document which was discussed during an open meeting wherein the position of the plaintiff in the lawsuit is that the meeting was not truly open because this document had not been made available to it at the time of the meeting. This lawsuit was quite recently filed and the Department of Justice is defending it. I am sorry but I can't say anything more about it because it is a matter currently in litigation. Senator CHILES. Well, we thank you for correcting us, and bringing that matter to our attention. I did not know of any case. Mr. ZUSMAN. I am particularly interested in your experience with the Florida statute because I gather from your remarks that there was a volume of litigation probably fairly recently after the statute became effective. We had anticipated that probably there would be litigation under the Federal statute. That hyopthesis was based on the large volume of litigation that occurred as a result of the 1974 amendments to the Freedom of Information Act; that is, the volume of litigation that has been so very extensive that it has really almost caught the Department of Justice off guard. The office that I am the section chief of is an office of 11 attorneys and we are responsible at the moment for roughly 1,000 lawsuits around the country. About two-thirds involve the Freedom of Information Act. I frankly don't know why the Federal experience under the Sunshine Act has been so different from the Florida experience. What also is somewhat bewildering is the fact that Department has not been engaged in the process of prelitigation or consulting although we are available to do that. As the Senator may be aware, prior to the enactment of the Federal statute, several members of the Office of Legal Counsel in the Department of Justice, primarily, Deputy Assistant Attorney General Mary Lawton and Attorney David Marblestone, were active in discussions about the proposed legislation. I have checked with Mr. Marblestone very recently and he verified the same experience that my office has had virtually no inquiry from the agencies as to interpretations of specific parts of the statute. I am afraid I don't feel qualified to guess why that is. Senator CHILES. I am not sure that I feel qualified either, but, like you, I am surprised. I will note a number of the cases in Florida initially were brought by the press. There has always been a completely different kind of attitude on sunshine by the national press than was true in Florida. That has always amazed me, too. In Florida the reason we really had sunshine was because of the continual persistence of the press. Every time you held a closed meeting in Florida, you had to throw some of the press out. They took your picture when you went in and your picture when you went out, and they displayed them. After a while, the people become so incensed they began to ask everybody in public office how they stood on sunshine. Finally, after a while the heat got so great that the bill finally came out of committee where it had rested for a long period of time. And, as it always seems to happen with the public vote, sunshine passed very strongly once it passed. Then when the boards and commissions ignored the act and began to hold their secret meetings and other meetings, many of these cases were brought by the press. As I say, we have never had the same strong interest of the national press up here. I think they have been so used to operating with the doors being closed, and by leaks or by being told afterward what happens, that there has just never been that kind of interest that there was, or that kind of persistence that there was in the Florida situation. That may have something to do with it. Ms. ZUSMAN. Well, I don't know whether one very rapid effect of these hearings will be that suddenly we will be faced with some lawsuits. I think that that is possible. You are turning up the heat in sunshine and maybe something will Senator CHILES. Well, that may be true. DEPARTMENT OF JUSTICE-ADVICE TO THE AGENCIES I note that Barbara A. Babcock, Assistant Attorney General, wrote a letter to different agencies in connection with your Civil Division's responsibility for defense of the act, and that letter was dated April 19, 1977. I would like to put a copy of that in the record. [The letter follows:] Mr. WAYLAND D. MCCLELLAN, General Counsel, U.S. Foreign Claims Settlement Commission, APRIL 19, 1977. DEAR MR. MCCLELLAN: In conjunction with the Civil Division's responsibilities for the defense of litigation under the Sunshine Act, 5 U.S.C. § 552b, I think it might be helpful to comment from time to time on matters which may raise potential litigation issues. This is the first such letter. I hope that you will consider the discussion in this letter as a part of our joint responsibility to insure that the Sunshine Act works and to avoid litigation whenever possible. Please feel free to distribute the letter to your staff so that our offices can cooperate and work together toward effective implementation of the Sunshine Act. Recently promulgated agency regulations bring to light a number of matters of interest which may merit consideration within your office : 1. Several agencies define the term "meeting" as used in subsection (a)(2) of the Sunshine Act (5 U.S.C. § 552b (a)(2)) in such way as to limit the joint deliberations which are subject to the Act. For instance we believe that in order to avoid ultimately fruitless litigation, a "briefing session" attended by at least the number of agency members required to take action on behalf of the agency, where the members attending have an opportunity to ask questions or seek clarification of matters of concern, should be included within the purview of regulations or practices applying the term "meeting". Where the deliberations do determine or result in the joint conduct or disposition of official agency business, and except as specified in subsection (d) or (e) of the Act, such deliberations are meetings subject to the Act. Should your agency have drawn a more narrow regulation, it leaves the agency's proceedings subject to continuous attack. Subsection (h) (1) of the Act (5 U.S.C. § 552(b) (h) (1)) provides that suits challenging agency action may be brought prior to the action challenger or within 60 days after the meeting out of which the violation allegedly arises "except that if public announcement of such meeting is not initially provided by the agency in accordance with the requirements of this said section, such action may be instituted pursuant to this section at any time prior to sixty days after any public announcement of such meeting." I suggest that you insure that the term "meeting" is broadly defined in practice so that the statute of limitations can come into play and so that the potential for litigation can be reduced. 2. The Act requires that agency meetings shall be open to "public observation" (5 U.S.C. § 552b (b)). Obviously public observation does not include the right to participate in the meeting. Likewise, the right to observe does not include any right to disrupt a meeting. Within these limits, I suggest that you accommodate members of the public desiring to attend open meetings. Meetings should be held in a room that has ample space, sufficient visibility, and adequate acoustics. Again, in order to avoid needless litigation over issues which do not go to the heart of the Act, the public should be permitted to take notes and photographs (without flash aids) and should be permitted to make sound recordings in a non-obtrusive manner. Each of these measures will enhance the public's ability to observe meetings and still permit the agency's business to proceed. If your agency has regulations not consistent with the foregoing, I suggest that you consider amending them. Of course, any person may attend a meeting without indicating his identity and/or the person, if any, whom he represents and no requirement of prior notification of intent to observe a meeting may be required. 3. A number of agency regulations explicitly provide that meetings will be open although an exemption may permit the closing of the meeting or portion thereof. I can add that a general practice of opening meetings to the fullest extent practicable will not only reduce litigation under the Act but will likely place us in a better posture in litigation, if and when any litigation occurs. I am certain that a vote of the membership of your agency on whether to close a meeting or portion thereof would, of course, take the public interest into account. I hope that the foregoing discussion is of assistance to you. I would welcome any suggestions you may have for matters appropriate for discussion in future, similar letters. Very truly yours, BARBARA ALLEN BABCOCK, |