GOVERNMENT IN THE SUNSHINE ACT Securities and Exchange Commission 13 are among the agencies which require permission in advance for use of recorders or cameras. The Federal Energy Regulatory Commission (successor to the Federal Power Commission) 14 and the Overseas Private Investment Corporation15 bar such use completely. The Act does not define "public observation."16 Nor does it specifically confer any right to record, photograph, or televise an open meeting. It remains an open question whether the right to do so in a manner which does not disrupt or interfere with the meeting is a concomitant of the right of observation.17 A number of agencies have taken steps to assist members of the public to understand and to follow the course of the meeting. The Federal Communications Commission has published a brochure entitled, "A Guide to Open Meetings," which includes a room arrangement locating key agency personnel and describing their functions, as well as a description of the voting procedures, explanations of terminology, and information about Commission procedures under the Sunshine Act. The Federal Trade Commission has undertaken to make available before open meetings summaries of matters on the agenda in order to facilitate understanding of 1317 C.F.R. §200.410, 42 F.R. 14697. 1418 C.F.R. §1.3a(b)(1), 42 F.R. 14700. 1522 C.F.R. §708.2, 42 F.R. 13111. 16 A few agencies define the term, see, e.g., regulations of the Federal Deposit Insurance Corporation, 12 C.F.R. §311.2(d), 42 F.R. 14676; and the Board of Governors, Federal Reserve System, 12 C.F.R. §261b.2(f), 42 F.R. 13297; or provide "guidelines for public observers," see, e.g., a notice of the Federal Trade Commission, 42 F.R. 13357; or set forth more detailed rules of conduct for public observers, see, e.g., regulations of the National Commission on Libraries and Information Science, 45 C.F.R. §1703.302, 42 F.R. 13555; and the U.S. Postal Service, 39 C.F.R. §232.6, 42 F.R. 17443. 17See regulations of the National Railroad Passenger Corporation, 42 F.R. 18908. Agencies might also consider the relevance of Administrative Conference Recommendation 72-1, "Broadcast of Agency Proceedings." See Appendix D. The recommendation is premised on the belief that radio-television coverage of many administrative proceedings will enhance public understanding of agency proceedings and should be encouraged, "subject to appropriate limitations and controls." See also Department of Justice Letter to Covered Agencies, April 19, 1977, Appendix E. The letter was sent by Barbara Babcock, Assistant Attorney General, Civil Division, and raised three issues with the Sunshine agencies: the definition of "meeting," opening meetings in the public interest, as well as the meaning of "public observation." GOVERNMENT IN THE SUNSHINE ACT the discussion.18 At the direction of the Chairman, the Federal Energy Regulatory Commission is making publicly available all draft Commission orders and opinions to be discussed in open meetings so that observers can follow the discussion. Staff recommendations and memoranda, however, are not being made available and requests for such materials or other Commission documents are still governed by Freedom of Information Act procedures.19 1842 F.R. 13539. See also 16 C.F.R. §4.15(b)(3), 42 F.R. 62912, which codifies this practice at the Federal Trade Commission. 19See pp. 97-99, infra. Grounds for Closing Meetings "(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—” Subsection (c) sets forth ten grounds or groups of grounds for which meetings may be closed and information regarding such meetings withheld from the public. The agency procedure for doing so is prescribed in subsections (d) and (f). It is important to note that the agencies are not required to close meetings which fall within the exemptions,' and, indeed, such meetings should be open "where the agency finds that the public interest [so] requires." Analytically, the agency's public interest determination is separate from the determination as to whether a meeting or portion of a meeting is within an exemption, and the agency must satisfy itself on both questions before deciding to close a meeting.2 As a practical matter, however, the decision as to the applicability of many of the exemptions implicitly involves a public interest determination regarding the likelihood of certain kinds of injury to be apprehended from disclosure, see, e.g., exemptions (6), (7) and (9), so that in those cases the two questions tend to merge into one. Furthermore, in the cases of exemptions (1) and (3) it is not always clear that the agency is free to disclose the materials to be discussed, whatever its own view of the public interest. But in the cases of exemptions (2), (4), (5), (8), and (10), the determination that the exemption is applicable by no means concludes the public interest question. "Closing a meeting on these grounds is permissive, not mandatory. The agency should not automatically close a meeting because it falls within an exception." S. Rept., 20. 2See, e.g., regulations of the Securities and Exchange Commission, 17 C.F.R. §200.402(c), 42 F.R. 14695; and the Federal Deposit Insurance Corporation, 12 C.F.R. §311.5(b)(1), 42 F.R. 59494. GOVERNMENT IN THE SUNSHINE ACT Since the exemptions are worded in terms of categories of information to be disclosed at a meeting, the agency determination made in advance of the meeting must of necessity be an estimate of what is likely to transpire. The Act requires the agency to determine whether the disclosure in question is "likely," and the Conference Report notes that this means "that it is more likely than not that the event or result in question will occur," Conf. Rept., 15.3 Of course, the agency will seldom be able to separate entirely its calculation as to the likelihood of the result from its perception of the gravity of the harm. Exemptions (1) and (2) — National Defense and Foreign Policy; Internal Personnel Rules and Practices "(1) disclose matters that are (A) specifically authorized under criteria established by an Executive order to be kept secret in the interests of national defense or foreign policy and (B) in fact properly classified pursuant to such Executive order; "(2) relate solely to the internal personnel rules and practices of an agency." Exemptions (1) and (2) are identical to the first two exemptions in the Freedom of Information Act, 5 U.S.C. §552(b). With respect to the second exemption, the language of the House bill was taken in preference to the language in the Senate bill, "relate solely to the agency's own internal personnel rules and practices." Accordingly, exemption (2) would be available for the discussion of a personnel matter involving another agency. The Conference Report also notes with approval the Supreme Court's interpretation of the second Freedom of Information Act exemption in Department of Air Force v. Rose, 425 U.S. 352 (1976); Conf. Rept., 15.5 See also regulation of the Securities and Exchange Commission, 17 C.F.R. $200.401(f), 42 F.R. 14694. 4See, e.g., regulations of the Commodity Futures Trading Commission, 17 C.F.R. §147.3(b)(2), 42 F.R. 13704; and the Securities and Exchange Commission, 17 C.F.R. §200.402(a)(2), 42 F.R. 14694. In Department of Air Force v. Rose, supra, the Supreme Court held that FOIA exemption (2) was not available to withhold case summaries of honors and ethics hearings at the Air Force Academy. The Court said, "[A]t least where the situation is not one where disclosure may risk circumvention of agency regulation, Exemption 2 is not applicable to matters subject to such a genuine and significant public interest. * * * Rather, the general thrust of the exemption is simply to relieve agencies of the burden of assembling and maintaining for public inspection matter in which the GOVERNMENT IN THE SUNSHINE ACT "(3) disclose matters specially exempted from disclosure by statute (other than section 552 of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld;" This exemption parallels the third exemption in the Freedom of Information Act, 5 U.S.C. §552(b)(3), which is amended to conform by section 5(b) of the Government in the Sunshine Act. The Conference Report says that this exemption "applies only to statutes that either (a) require that the in- Examples of statutes which would come within exemption (3) are sections 706(b) and 709(e) of the Civil Rights Act of public could not reasonably be expected to have an interest." 425 U.S. at 369-70. Translating such a public interest-administrative burden calculus from the FOIA to the Sunshine Act presents certain problems. It might be argued that the public always has an interest in matters which are sufficiently important to require the attention of a quorum of Presidential appointees, and in most respects the administrative burdens of closing a meeting are greater than those involved in holding an open meeting. On this rationale, therefore, the scope of exemption (2) might be fairly narrow. The earlier legislative history, however, indicates that the purpose of Sunshine exemption (2) is "to protect the privacy of staff members and to cover the handling of strictly internal matters," H. Rept. I, 9; see also S. Rept., 21. With respect to protection of privacy the exemption overlaps exemption (6), although the privacy interest in discussion of personnel matters may very well go beyond preventing disclosure of information of a personal nature and include the interests of participants in the meeting in being able to comment freely on the qualifications of members of the staff. In other words, the intent of Sunshine exemption (2) seems to be to preserve, in the area of personnel and internal administration, the values served by the fifth exemption of the FOIA. |