GOVERNMENT IN THE SUNSHINE ACT

Whether given deliberations will achieve a consensus or even lead individual members to make up their minds is, of course, a question which may not be capable of an answer in advance. Obviously, the more specific the subject under consideration and the more immediate its relationship to prospective agency action the more difficult it will be to keep the discussion tentative and informal. The difficulties of defining "meeting" in terms of what actually happens instead of in terms of the purpose in calling it were much discussed in the House of Representatives, and at one point a "purpose" test was adopted.18 However, the language in the final version seems to make the test what actually happened. In effect, this forces the agency to try to meet both tests. It must treat as a meeting prospectively every gathering which is either intended to or likely to result in the members reaching firm decisions. Conversely, if a gathering has not been treated as a meeting because of the tentative and informal nature of the anticipated discussion, the agency members have a duty under subsection (b) to see that the discussion remains tentative and informal. This line of distinction is not only a fine one, but one that assumes a certain predictability about the course of such informal discussions. To administer it consistently with the spirit and even the letter of the Act will require vigilance on the part of officials who preside and restraint on the part of those who participate, to the end that discussions do not move into an area properly reserved for meetings. Indeed, it will no doubt frequently be desirable to conduct briefings and exploratory discussions under the procedures required for meetings so as to avoid the somewhat artificial restraints which the distinction appears to require.

Still another element in the definition of "meeting," and one which is difficult to separate from the question of what degree of formality is necessary to constitute "deliberations" or "joint conduct," is the concept of "official agency business." The legislative history is unhelpful.19 The bill passed by the House used the term "agency business," but

enhancing public awareness of that process and the accountability of the agency members. S. Rept., 17-18. A discussion which significantly furthers the decisional process by narrowing issues, discarding alternatives, etc., should be treated as a meeting even though it does not and is not expected to achieve a complete resolution. On the other hand, those exchanges of views which are not of a nature to foreclose or narrow discussion at subsequent collegial gatherings might be treated as outside the definition without loss to the values the Sunshine Act seeks to achieve. 18See 122 Cong. Rec. H7889-90 (daily ed. July 28, 1976). 19See S. Rept., 18-19.

GOVERNMENT IN THE SUNSHINE ACT

there is no indication in the Conference Report that the decision to accept the Senate's phraseology reflected a judgment that "official agency business" is a narrower term. Whether "official agency business" is interpreted narrowly, as fairly well-defined pending or anticipated matters, or broadly, as any subject matter relevant to the work of the agency, will, obviously, affect the treatment to be accorded briefings and general or exploratory discussions. An argument in favor of the more narrow definition is that the phrase "joint conduct or disposition" at the least implies a matter which is before the agency or in some way susceptible of disposition by the agency.

Where a function has been vested in the agency chairman, as by a delegation from the agency, or in a statute or reorganization plan, a gathering at which the chairman seeks the informal advice of his colleagues on the carrying out of that function would not be a meeting. 20 This conclusion is consistent with the idea expressed above that "official agency business" means a matter which the collegial body is able to act upon.21

Subsection (d) and (e) Deliberations. Excluded from the definition of "meeting" are deliberations under subsections (d) and (e) to determine whether to close a meeting, to withhold information from a meeting notice, to call a meeting on short notice, or to change the time, place, or subject matter of a meeting. The purpose of this exclusion is to avoid an endless chain of meetings to close meetings. 22 Agency deliberations under subsection (f), however, regarding the withholding of portions of the transcript of a closed meeting, are not exempted from the definition of "meeting." If an agency decides not to delegate the withholding decision, its gathering to discuss the matter would come within the definition.23

20S. Rept., 17. Quaere whether the result should be different where the agency delegates authority to individual members in rotation and subject to collegial review. See regulation of the Securities and Exchange Commission, 17 C.F.R. §200.42, 42 F.R. 14693.

21It was suggested in one of the comments on the tentative edition that the deliberations do not constitute "joint conduct" of agency business where the responsibility for the decision is in the Chairman and not in the collegial body. This seems to us to come to much the same thing, that "official agency business" presupposes a matter which may be the subject of "joint," i.e., collegial, action.

22 Nor is an agency required to "meet" on these matters; it may act on them by notation procedure. Conf. Rept., 11. See also p. 30, infra. 23See pp. 73-74, notes 30, 38, infra.

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"Member"

"(3) the term 'member' means an individual who belongs to a collegial body heading an agency."

The definition of "member" appears self-explanatory, at least with respect to the great majority of agencies. The Federal Election Commission has defined the term to include its two ex officio non-voting commissioners, the Secretary of the Senate and the Clerk of the House. However, for purposes of determining the presence of the number of members required to constitute a meeting, only voting members are counted.24

2411 C.F.R. §§2.3, 2.5, 42 F.R. 13202.

Conduct of Business, Presumption of Openness, and Public Observation

"(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.”

The prohibition against conducting or disposing of agency business other than in accordance with the Sunshine Act seems largely self-explanatory, if not redundant. It was proposed by the Department of Justice to complement the Department's recommendation that a meeting be defined in terms of its purpose, rather than in terms of what actually occurred. Although the purpose test, which was adopted by the House, was dropped in the Senate-House Conference, the prohibition was retained. The Conference Report makes clear that the prohibition does not prevent agency members from disposing of business by circulation of papers instead of in meetings, i.e., by notation procedure, Conf. Rept., 11; cf. Braniff Airways, Inc. v. CAB, 379 F. 2d 453, 460 (D.C. Cir. 1967). To comply with the spirit of the Sunshine Act, however, agencies should refrain from excessive reliance on notation procedure.2

The second sentence of subsection (b) is intended to establish a presumption in favor of open meetings.3

The Senate Report describes the substance of the open meeting requirement as follows:

"When a meeting must be open, the agency should make arrangements for a room large enough to accommodate a reasonable number of persons interested in attending. Holding a meeting in a small room, thereby denying

'House Judiciary Hearings, 56.

2See, e.g., regulations of the Federal Trade Commission, 16 C.F.R. §4.14(a), 42 F.R. 13540; the Securities and Exchange Commission, 17 C.F.R. §200.41(b), 42 F.R. 14693; and the U.S. Parole Commission, 28 C.F.R. §16.201(b), 42 F.R. 14714, which allow any member to direct that an item circulated for consideration by notation procedure be placed on the agenda of an agency meeting.

3S. Rept., 19; H. Rept. I, 12-13; H. Rept. II, 12. See also "declaration of policy" in section 2 of the Government in the Sunshine Act.

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access to most of the public, would violate this section and be contrary to its clear intent.

"Nothing in subsection [[b]] requires an agency to permit the public to actively participate in the meeting. Other statutes and agency regulations and policies continue to govern such participation. Section [552b] only gives the public the right to attend meetings, to listen and to observe." S. Rept., 19.

While agencies may not defeat the open meeting requirement by holding meetings in facilities which are remote or inadequate for public observation, neither are they required to guarantee adequate accommodation for everyone who wishes to attend. To the extent that openness has a therapeutic purpose, that purpose can be adequately served if some members of the public are present, particularly if they include representatives of the news media. Although it is doubtful that agencies can require notice in advance as a condition for attendance, it seems reasonable for agencies to request such notice in order to be better able to gauge the need for public accommodations, and, where seating is limited, to seat first those who have given notice of their intention to attend.4

One question on which the agencies have been sharply divided is whether to permit the public or press to photograph, televise or tape record meetings. The Federal Communications Commission will permit use of tape recorders and cameras (no flashbulbs);5 the Equal Employment Opportunity Commission will permit still photographs (no flashbulbs) at the beginning of the meeting and use of portable sound recorders during the meeting; the U.S. Postal Service? and the Postal Rate Commissions will permit use of tape recorders and cameras if it is not disruptive; the Civil Aeronautics Board will permit tape recording, if done unobtrusively, but not use of cameras, while the Board of Governors, Federal Reserve System, 10 the U.S. Parole Commission, the Nuclear Regulatory Commission,12 and the

11

See, e.g., regulations of the Commodity Credit Corporation, 7 C.F.R. §1409.6(g), 42 F.R. 14675; and the U.S. Foreign Claims Settlement Commission, 45 C.F.R. §504.21, 42 F.R. 11010.

542 F.R. 12865.

629 C.F.R. §1612.3(d), 42 F.R. 13831.

739 C.F.R. §7.2(b), 42 F.R. 12863.

839 C.F.R. §3001.43(a)(2), 42 F.R. 25729. 914 C.F.R. §310b.9(b), 42 F.R. 14682.

1012 C.F.R. §261b.2(f), 42 F.R. 13297.

1128 C.F.R. §16.202(b), 42 F.R. 14714. 1210 C.F.R. §9.103, 42 F.R. 12878.