GOVERNMENT IN THE SUNSHINE ACT 9 without specified time limits, while some regulations do not specify procedures for considering such requests.10 The language and the legislative history of subsection (k) indicate that Congress intended the Freedom of Information Act to govern requests for access under subsection (f)(2). First, the plain meaning of the clause "except that the exemptions set forth in subsection (c) *** shall govern in the case of any request made pursuant to section 552 to copy or inspect the transcripts," etc., is that such requests should be made pursuant to section 552, the FOIA, and it seems a fair inference that the reference to the "exemptions" in the Sunshine Act is intended to negate a broader applicability of that Act to the processing of such requests. It is true that there is legislative history suggesting that Congress contemplated procedures distinct from, though similar to, those under the FOIA.11 But this legislative history referred to Senate and House bills which stated that with respect to requests for transcripts, etc., "the provisions of this Act shall govern **"12 The Conference rephrased the subsection, substituting "exemptions" for "provisions," Conf. Rept., 24, presumably in order to leave the FOIA in effect for other purposes. * There do not seem to be any serious practical difficulties in conforming to the FOIA the processing of requests under See, e.g., regulations of the Equal Employment Opportunity Commission, 29 C.F.R. §1612.11, 42 F.R. 13833; National Mediation Board, 29 C.F.R. §§1209.15(b), 1209.16, 42 F.R. 14717; and Securities and Exchange Commission, 17 C.F.R. §200.408, 42 F.R. 14697. 10See, e.g., regulations of the Federal Election Commission, 11 C.F.R. §3.4, 42 F.R. 13203; Interstate Commerce Commission, 49 C.F.R. §1012.5, 42 F.R. 13799. 11"When people ask for copies of the records of meetings available to the public, agencies should follow procedures similar to those adopted under the Freedom of Information Act, ***." S. Rept., 32. See also H. Rept. I, 18. 12The language of the House bill, except that the provisions of this Act shall govern in the case of any request made pursuant to [section 552] to copy or inspect the minutes [the bill did not require recordings or transcripts] described in subsection (f) of this section," seems clearly to have contemplated separate Sunshine Act procedures. The language of the Senate bill, "in the case of any request made pursuant to section 552 *** the provisions of this Act shall govern whether such transcripts or electronic recordings shall be made available in accordance with such request," is ambiguous, and the report seems to point both ways, compare S. Rept., 32 and S. Rept., 39. GOVERNMENT IN THE SUNSHINE ACT subsection (f)(2).13 It has been suggested that the agency's duty under subsection (f) (2) to make transcript material "promptly available" is inconsistent with the time period provided in FOIA §552(a)(6) for processing requests for information. This difficulty disappears on examination, however. The agency does indeed have a duty under subsection (f)(2) to make transcript material available in advance of a specific request, see pp. 66-69, supra, just as agencies are required under section 552(a)(2) to make certain materials "available for public inspection and copying." It is true that under the FOIA the category of records to which a requester is entitled is considerably broader than the category which the agency is required to make available in advance of a request, whereas under the Sunshine Act the agency should, in theory, make available in the first instance all meeting records which it is not entitled to withhold. But in practice an agency's initial decision to withhold meeting record material may be altered on reconsideration in the light of a particular request, or on review by a higher level of authority, or simply because of the passage of time. See pp. 75-76, supra. Therefore, compliance with the duty to make meeting record material promptly available does not eliminate the need for a procedure for handling individual requests, and this procedure should be that provided by the FOIA. This does not mean, of course, that the agency's procedure for disposing of subsection (f) (2) requests must be identical to the procedure it follows for other FOIA requests. For example, the agency members may desire greater involvement in decisions to release meeting record material than they would have in decisions respecting documents. Or agencies might wish to expedite processing of subsection (f)(2) requests by requiring that they be distinctively identified or addressed to an office other than that which handles other FOIA requests. It will, in our view, suffice that the procedure employed is consistent with the requirements of the FOIA. Records Disposal. The last sentence of subsection (k) provides that the records disposal requirements of the Federal Records Act, 44 U.S.C. §§3301-3314, shall not apply to the records of the proceedings at closed meetings required by subsection (f). Such materials need not be kept beyond the period specified in subsection (f)(2). S. Rept., 40. The Report added, "The committee expects, however, that in accordance 13 We have previously discussed the advantages of applying the judicial review procedures of the FOIA rather than those of the Sunshine Act to requests for meeting record materials. See p. 88, supra. GOVERNMENT IN THE SUNSHINE ACT with the principles established in the Federal Records Act, the agency will choose to permanently retain transcripts or electronic recordings of meetings of special interest." Id. The Government in the Sunshine Act (94th Cong., 2d Sess., S.5, Sept. 13, 1976) An Act To provide that meetings of Government agencies shall be open to the public, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may Government be cited as the "Government in the Sunshine Act". DECLARATION OF POLICY in the Sunshine Act. 5 USC 552b note. SEC. 2. It is hereby declared to be the policy of the United States that 5 USC 552b the public is entitled to the fullest practicable information regarding note. the decisionmaking processes of the Federal Government. It is the purpose of this Act to provide the public with such information while protecting the rights of individuals and the ability of the Government to carry out its responsibilities. OPEN MEETINGS SEC. 3. (a) Title 5, United States Code, is amended by adding after section 552a the following new section: ❝g 552b. Open meetings "(a) For purposes of this section— 5 USC 552b. Definitions. "(1) the term 'agency' means any agency, as defined in section 552(e) of this title, headed by a collegial body composed of two 5 USC 552. or more individual members, a majority of whom are appointed to such position by the President with the advice and consent of the Senate, and any subdivision thereof authorized to act on behalf of the agency; "(2) the term 'meeting' means the deliberations of at least the number of individual agency members required to take action on behalf of the agency where such deliberations determine or result in the joint conduct or disposition of official agency business, but does not include deliberations required or permitted by subsection (d) or (e); and "(3) the term 'member' means an individual who belongs to a collegial body heading an agency. (b) Members shall not jointly conduct or dispose of agency business other than in accordance with this section. Except as provided in subsection (c), every portion of every meeting of an agency shall be open to public observation. "(c) Except in a case where the agency finds that the public interest requires otherwise, the second sentence of subsection (b) shall not apply to any portion of an agency meeting, and the requirements of subsections (d) and (e) shall not apply to any information pertaining to such meeting otherwise required by this section to be disclosed to the public, where the agency properly determines that such portion or portions of its meeting or the disclosure of such information is likely to "(1) disclose matters that are (A) specifically authorized under criteria established by an Executive order to be kept secret in the 90 STAT. 1241 |