REVOLUTION Department of Justice Letter to 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 *Copies of this letter were addressed to all 47 agencies then covered by the Sunshine Act. E GOVERNMENT IN THE SUNSHINE ACT '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 challenged 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. Sample Agency Meeting Notices* sunshine act meetings This section of the FEDERAL REGISTER contains notices of meetings published under the "Government in the Sunshine Act,, (Pub. L. 94-409), 5 U.S.C. 552b(e)(3). I. Sample Federal Register Notices A. Open Meetings CIVIL AERONAUTICS BOARD [M-431 AUGUST 3, 1977. TIME AND DATE: 10:00 a.m., August 11, 1977. PLACE: Room 1027, 1825 Connecticut Avenue NW., Washington, D.C. 20428. SUBJECT: 1. Docket 30994, TACA International Airlines, S. A.; Amendment of a Foreign Air Carrier Permit (Memo. No. 7325, BIA, BOR, OGC). 2. Docket 29044, Amendment of Part 252-"Provision of Designated 'NoSmoking' Areas Aboard Aircraft Operated by Certificated Air Carriers" (Memo. No. No. 7323, OGC). STATUS: Open. PERSON TO CONTACT: Phyllis T. Kaylor, The Secretary, 202673-5068. 42 F.R. 40513 Aug. 10, 1977 NATIONAL TRANSPORTATION SAFETY BOARD. TIME AND PLACE: 9:30 a.m., Wednes day, November 23, 1977 (NM-77-39). PLACE: NTSB Board Room, National Transportation Safety Board, 800 Independence Avenue SW., Washington, D.C. 20594. STATUS: Open. MATTERS TO BE CONSIDERED: 1. Pipeline Accident Report.-Pennsylvania Gas and Water Co., Natural Gas Explosions near Williamsport, Pa., January 25, 1977. 2. Aircraft Accident Report.-Atlantic City Airlines, Inc., DeHavilland DHC-6, Twin Otter, Cape May County Airport, N.J., December 12, 1976. 3. Recommendation to Southern Union Gas Co. re pipeline accident, El Paso, Tex., August 9, 1977. 4. Letter to FAA re NPRM 77-20, operations review-general operating and flight rules and related airworthiness standard. 5. Discussion of Recommendation closeout, A-76-134 and 135. 6. Discussion of Recommendation closeout I-76-6. CONTACT PERSON FOR MORE INFORMATION: Sharon Flemming 202-755-4930. 42 F.R. 59473 Nov. 17, 1977 *These notices were selected to illustrate the range of agency practices with respect to implementing the public notice provisions of the Sunshine Act. The selection was not intended to indicate approval or disapproval of particular practices or forms of notice. F GOVERNMENT IN THE SUNSHINE ACT Case No. 43,281-NR.-United States Na- Case No. 43,289-1.-Chicopee Bank and Personnel actions regarding appointments, promotions, administrative pay increases, reassignments, retirements, separations, removals, etc. Names of employees authorized to be exempt from disclosure pursuant to the provisions of subsections (c) (2) and (c) (6) of the "Government in the Sunshine Act" (5 U.S.C. 552b (c) (2), (c) (6)). CONTACT PERSON FOR MORE INFORMATION: Alan R. Miller, Executive Secretary, 202-389-4446. 42 F.R. 59471 Nov. 17, 1977 GOVERNMENT IN THE SUNSHINE ACT F C. Open-Closed Meetings EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. TIME AND DATE: 9:30 a.m. (eastern time), Tuesday, January 3, 1978. PLACE: Chairman's Conference Room No. 5240, on the fifth floor of the Columbia Plaza Office Building, 2401 E Street NW., Washington, D.C. 20506. STATUS: Parts will be open to the public and parts closed to the public. MATTERS TO BE CONSIDERED: PARTS OPEN TO THE PUBLIC Three proposed contracts: (1)To provide, for publication, statistical tables from the 1976 EEO-5 employment survey of public elementary and secondary school systems; (2) to provide, for publication, tabulations of the 1976 EEO-4 employment survey of State and local governments; (3) to provide microfilmed statistical reports from various employment surveys. PARTS CLOSED TO THE PUBLIC Litigation authorization; general counsel recommendations: Matters closed to the public under sec. 1612.13(a) of the Commission's regulations (42 FR 13830, March 14, 1977). NOTE. Any matter not discussed or concluded may be carried over to a later meeting. CONTACT PERSON FOR MORE INFORMATION: Marie D. Wilson, Executive Officer, Executive Secretariat, at 202-6346748. This notice issued December 23, 1977. 42 F.R. 64782 Dec. 28, 1977 BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM. TIME AND DATE: 10 a.m., Wednesday, December 21, 1977. The closed portion of the meeting will commence at the conclusion of the open discussion. PLACE: 20th Street and Constitution Avenue NW., Washington, D.C. 20551. STATUS: Part of the meeting will be open; part will be closed. MATTERS TO BE CONSIDERED: Open portion: 1. The Board's 1977 annual report to Congress on truth in lending. 2. Federal Reserve Bank budgets for 1978. 3. Proposed regulation to prohibit the use of material nonpublic information by bank personnel in the purchase or sale of securities. 4. Request by a member bank for reconsideration of a Board interpretation (1970 Federal Reserve Bulletin 343) relating to prepayment, in the form of merchandise, of interest on deposits. 5. Any agenda items carried forward from a previously announced meeting. Closed portion: 1. Federal Reserve Bank and branch director appointments.1 2. Any agenda items carried forward from a previously announced meeting. CONTACT PERSON FOR MORE INFORMATION: Mr. Joseph R. Coyne, Assistant to the Board, 202-452-3204. Dated: December 13, 1977. GRIFFITH A. GARWOOD Deputy Secretary of the Board. 42 F.R. 63516 Dec. 16, 1977 INTERNATIONAL TRADE COMMISSION. [USITC SE-77-48] TIME AND DATE: 9:30 a.m., August 18, 1977. PLACE: Room 117, 701 E Street NW., Washington, D.C. 20436. STATUS: Parts of this meeting will be open to the public. The rest of the meeting will be closed to the public. MATTERS TO BE CONSIDERED: PORTIONS OPEN TO THE PUBLIC: 1. Reorganization. 2. Agenda. 3. Minutes. 4. Ratifications. 5. Petitions and complaints (if necessary). 6. Investigation 332-87 (Western Steel Market)- -see action jacket ID-77-52. |