GOVERNMENT IN THE SUNSHINE ACT (9) (B) on the ground that "the premature disclosure of budgetary information may 'be likely to significantly frustrate implementation of proposed agency action."" OMB Circular No. A-10, §7 (revised, November 12, 1976).14 It is not clear whether this conclusion is based on an analogy to those situations in which the agency is developing a negotiating position or on peculiar needs for confidentiality in the budgetary process. Somewhat similar to the problem of discussion of budget proposals is the problem of agency deliberations over legislative proposals and testimony. There is legislative history in the Senate debate supporting the proposition that under some circumstances exemption (9)(B) would be available for a meeting at which an agency sought to formulate its position on legislation.15 A question has been raised as to whether an agency would be able to assert (9) (B) in order to protect a proposed action of another agency. Although the situation may not have been in the contemplation of the drafters, the Act seems to permit it, and nothing in the policy underlying exemption (9)(B) requires a different result. The agency closing the meeting would, of course, have to make its own determination as to the likelihood of harm from opening the meeting and as to the public interest in an open meeting. 14Cf. preambles to regulations of the National Council on Educational Research, 42 F.R. 14721; and the National Science Board, 42 F.R. 14719. 15 The following colloquy took place between Senators Percy and Chiles: "Mr. PERCY. The Federal Reserve is concerned that the bill contains no provision that would enable the Board to deliberate and formulate legislative proposals, presentations, testimony and positions without exposing them to the public prior to their deliverance to Congress. "Senator Chiles, would such discussions be exempt from the openness provisions of the bill? "Mr. CHILES. If a Congressman or a committee requests in confidence for the views of any agency on any legislative matter, or if it refers to testimony any agency could close a meeting discussing the matter. The whole content [sic] of the agency to provide information to a Congressman or committee in confidence could be frustrated if the discussion was public. Section 201(7)(B) [now 552b(c) (9) (B)] would permit an agency to close its meeting in this instance where it must respond in confidence to an inquiry from Congress or prepare in confidence testimony to be given later before a committee." 121 Cong. Rec. 35331. See also regulation of the Nuclear Regulatory Commission, 10 C.F.R. §9.104(b)(3), 42 F.R. 12878. GOVERNMENT IN THE SUNSHINE ACT Exemption (9) (B) is not available where the agency has already disclosed to the public the content or nature of its proposed action or where it is required to do so before taking final action on the proposal. As stated in the Senate Report, "Since [(9)(B)] only applies when an agency feels it must act in secret, it would be contrary to the intent of this provision for an agency to rely on it when the public is already aware of the actions being considered, or where the Administrative Procedure Act or other statute requires the agency to publicly announce its proposal before taking final action." S. Rept., 25. This exception throws additional light on the basic purpose of exemption (9) (B), that ordinarily it is not the agency's deliberation itself so much as the efficacy of the determination which the exemption is designed to protect. The Conference Report notes, with respect to exemption (9) (B), that disclosure of information regarding the proposed action by a source other than the agency, as by an unauthorized "leak," would not make the exemption unavailable. Conf. Rept., 15. Finally, it should be noted that neither exemption (9)(A) nor (9)(B) may be invoked unless "significant" adverse effects are anticipated from disclosure. 16 Determining what is significant involves a balancing of the public interests in disclosure and in nondisclosure. See S. Rept., 25. Of course, the standard of "significance" is not absolute, but relative to the importance of the matter involved. Thus, if disclosure would significantly frustrate implementation of a proposed agency action, the meeting may be closed, notwithstanding that the action itself would not be of great significance. - Exemption (10) Issuance of Subpena, Participation in Civil Action or Proceeding, Formal Agency Adjudication "(10) specifically concern the agency's issuance of a subpena, or the agency's participation in a civil action or proceeding, an action in a foreign court or international tribunal, or an arbitration, or the initiation, conduct, or disposition by the agency of a particular case of formal agency adjudication pursuant to the procedures in section 554 of this title or otherwise involving a determination on the record after opportunity for a hearing.” The Senate Report explains the considerations behind exemption (10) as follows: "The committee felt that it would be inappropriate for several reasons to require agencies to open meetings discussing specific cases of adjudication. Public disclosure 16"Significant" and "significantly" were substituted for "serious" and "seriously" on the Senate floor, 121 Cong. Rec. 35330. GOVERNMENT IN THE SUNSHINE ACT of an agency's legal strategy in a case before the agency or in the courts could make it impossible to litigate successfully the action. Public discussions of the guilt or innocence of a particular individual in agency adjudication could unfairly injure a person's reputation, or make it impossible for him to receive a fair or impartial hearing. Adjudications of the type covered by this paragraph must already be decided solely on the information in the record. Unlike other cases, the entire record on which the agency must make its decision in adjudication is open to inspection by any member of the public.*** Finally, many aspects of the adjudicative process, such as the trial before an administrative law judge or appellate arguments before the commission are generally open now to the public. To fall within the provisions of this paragraph the discussion must concern a particular case of adjudication. If the agency discusses a particular series of cases, each of which meets the requirements of this paragraph, the meeting may also be closed. The paragraph would not apply when an agency discusses its adjudication policies in general, such as the policy that should be adopted towards all those that may violate a particular law." S. Rept., 26. While the discussion must relate to a particular case or cases for the exemption to be available," the case need not be pending at the time of the discussion. The Senate Report states that "discussions concerning whether the agency should either bring an action itself or ask the Department of Justice to bring it," S. Rept., 26, are within the exemption, and there is no reason why discussion of possible agency participation in an action as intervenor, defendant, or amicus curiae would not be entitled to similar treatment.18 Does discussion of a case of formal rulemaking qualify for the exemption? Such a case involves a determination on the record after opportunity for a hearing, but it is not adjudication within the APA's definition; see 5 U.S.C. §551(5), (7). Syntactically, the phrase "otherwise involving a determi 17 While "a particular case" is used in exemption (10) only with respect to agency proceedings, we believe that the references to a civil action, an action in a foreign court, etc., likewise contemplate particular cases. 18See, e.g., regulation of the Nuclear Regulatory Commission, 42 F.R. 12876. But if the action under discussion is not pending, it must be imminent. The qualification that the discussion concern a "particular case" would be emptied of significance if the exemption were held available for any discussion of legal objections to a proposed course of action. GOVERNMENT IN THE SUNSHINE ACT nation on the record * * *” appears to be qualified by "particular case of formal agency adjudication." But there is a suggestion in the Senate Report that the term "adjudication" was not intended to exclude formal rulemaking, 19 and the considerations behind the exemption discussed in the report are applicable to formal rulemaking almost as much as to formal adjudication. The House Judiciary Committee Report assumes that exemption (10) includes all formal agency proceedings, adjudication and rulemaking. H. Rept. II, 9.20 19See S. Rept., 26, which cites as an example of a situation in which the agency should choose to open a meeting, notwithstanding the availability of exemption (10), "a formal rulemaking proceeding where general agency policy, rather than the facts of a particular case, are determinative." 20 Relying on this legislative history, the Postal Rate Commission has taken the position that formal rulemaking is within exemption (10). 42 F.R. 13288. Procedures for "(d) (1) Action under subsection (c) shall be taken only when a majority of the entire membership of the agency (as defined in subsection (a)(1)) votes to take such action. A separate vote of the agency members shall be taken with respect to each agency meeting a portion or portions of which are proposed to be closed to the public pursuant to subsection (c), or with respect to any information which is proposed to be withheld under subsection (c). A single vote may be taken with respect to a series of meetings, a portion or portions of which are proposed to be closed to the public, or with respect to any information concerning such series of meetings, so long as each meeting in such series involves the same particular matters and is scheduled to be held no more than thirty days after the initial meeting in such series. The vote of each agency member participating in such vote shall be recorded and no proxies shall be allowed." Required Majority Vote on Closing and Information "Proposed to be withheld Under Subsection (c)" Subsection (d) sets forth the procedures an agency must follow to close a meeting or portions of a meeting and to withhold from the public announcements information relating to the meeting otherwise required by subsections (d) and (e). Subsection (d)(1) permits the closing of a meeting or portion of a meeting, or the withholding of information about the meeting, only when "a majority of the entire membership of the agency (as defined in subsection (a)(1)) votes to take such action." The Conference Report indicates that "the reference to the definition of 'agency' *** is intended to make clear that when a subdivision is authorized to act on behalf of the agency, a majority of the entire membership of the subdivision is necessary to close a meeting." Conf. Rept., 17. A separate vote must be taken on each meeting, or portion of a meeting, the agency wants to close, or with respect to any information about the meeting the agency wants to withhold. |