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GOVERNMENT IN THE SUNSHINE ACT

Summary

Subsection (k) provides that nothing in the Sunshine Act "expands or limits the present rights of any person under" 5 U.S.C. §552, the Freedom of Information Act, except that the Sunshine Act rather than FOIA exemptions govern in the case of any FOIA request to inspect or copy the transcript, recording, or minutes of a closed meeting.

Subsection (1) provides that nothing in Section 3 authorizes the withholding of information from Congress, nor the closing of a meeting required to be open pursuant to another

statute.

Finally, subsection (m) declares that nothing in Section 3 of the Sunshine Act authorizes the withholding of information otherwise available to an individual under 5 U.S.C. §552a, the Privacy Act.

Definitions

"Agency" and "Subdivision"

"(1) the term 'agency' means any agency, as defined in section 552 (e) of this title, headed by a collegial body composed of two 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;"

"Agency"

The definition of "agency" is, by and large, selfexplanatory. It covers all agencies which are headed by a collegial body of two or more members, a majority of whom are appointed to such positions by the President with the advice and consent of the Senate. Agency means "agency" as defined in the 1974 amendments to the Freedom of Information Act, P.L. No. 93-502, 5 U.S.C. §552(e), and the case law and other authorities under that statute will presumably control. See S. Conf. Rept. No. 93-1200, 14-15; 1974 U.S. Code Cong. & Ad. News 6293; Soucie v. David, 448 F. 2d 1067, 1073-75 (D.C. Cir. 1971); Rocap v. Indiek, 539 F. 2d 174, 17780 (D.C. Cir. 1976). The Senate and House Committee Reports contain lists of agencies which appeared to the respective committees to be covered, but both reports specified that it was the statutory definition and not the lists which would govern. S. Rept., 15-16; H. Rept. II, 13-14.1

1A list of agencies which have issued regulations, with citations to both proposed and final rules, appears in Appendix B. Since this list of 47 agencies was compiled, three additional agencies have come under the Sunshine Act and have either issued proposed regulations or are planning to do so.

Under the Legal Services Corporation Act Amendments of 1977, P.L. No. 95-222, meetings of the Legal Services Corporation and its state advisory councils are now covered by the Sunshine Act. On January 12, 1978, the Corporation issued proposed regulations, 43 F.R. 1807.

The Copyright Royalty Tribunal was created under P.L. No. 94553. Even though the Tribunal is placed within the legislative branch, it is a multi-member agency composed of Presidential advice-and

GOVERNMENT IN THE SUNSHINE ACT

The Department of Justice has taken the position that members who serve on a collegial agency ex officio by virtue of their appointment with advice and consent to another position do not count toward the majority required by the definition because their appointment was not to such position, i.e., on the collegium. Thus, the Department ruled that the Federal Labor Relations Council, established by Executive Order 11491, which consists of the Chairman of the Civil Service Commission, the Secretary of Labor, and the Director of the Office of Management and Budget, all serving ex officio, is not an agency for purposes of the Sunshine Act.2 "Subdivision"

The open meeting requirements apply not only to meetings of the full collegial body but to meetings of "any subdivision thereof authorized to act on behalf of the agency." Legislative history indicates that "authorized to act on behalf of the agency" should be interpreted broadly and not in the relatively narrow sense of taking agency action as defined in the Administrative Procedure Act, 5 U.S.C. §551(13). Thus, the report of the House Government Operations Committee states that "panels or boards authorized to submit recommendations, preliminary decisions, or the like to the full commission, or to conduct hearings on behalf of the agency" are included within the meaning of subdivision. H. Rept. I, 7. On the other hand, where a committee of members has been directed to draw up and submit an informal recommendation to the full collegial body, which recommendation is then open to full consideration by the body, it is hard to regard such an assignment as an authorization to act on

consent appointees and is conducting its operations as though it were covered by the Sunshine Act. As of January, 1978, the Tribunal was in the process of preparing rules of procedure, including open meeting regulations.

Finally, the National Museum Services Board was created under P.L. No. 94-462. It is also a multi-member body of Presidential adviceand-consent appointees and is conducting its operations under the Sunshine Act. The Board had yet to issue open meeting regulations, as of January, 1978.

2Letter of Oct. 27, 1976 from Deputy Asst. Atty. Genl. Leon Ulman, Office of Legal Counsel, to Mr. Harold D. Kessler, Federal Labor Relations Council. The Department's conclusion is supported by the legislative history, House Judiciary Committee Hearings, 16. The Federal Open Market Committee has concluded that it is not a covered agency for the same reason, 12 C.F.R. §281.2, 42 F.R. 13300. However, the Federal Home Loan Mortgage Corporation, whose Board of Directors consists of the members of the Federal Home Loan Bank Board, has issued regulations "consistently with the requirements" of the Sunshine Act, 1 C.F.R. §460.1-1, 42 F.R. 14857.

GOVERNMENT IN THE SUNSHINE ACT

behalf of the agency in any meaningful sense.3 At a minimum, a subdivision must have a specified membership and fixed responsibilities; an informal working group authorized to report back to the body is not a subdivision.4

It should be noted that "subdivision thereof" refers back to "collegial body," not to "agency." Subdivisions made up entirely of employees other than members of the collegial body are not covered by the Act, even though they may be authorized to act on behalf of the agency.5 The basis for excluding subdivisions made up of agency employees is well stated in the Senate Report:

"The agency heads are high public officials, having been selected and confirmed through a process very different from that used for staff members. Their deliberative process can be appropriately exposed to public scrutiny in order to give citizens an awareness of the process and rationale of decisionmaking." S. Rept., 17.

Where a collegial subdivision is made up in part of agency members and in part of staff, the answer is unclear. Where agency members make up a majority of the members of the subdivision the subdivision would appear to be a subdivision of the collegial body. Where staff make up a majority of the subdivision, assuming that the relationship among the members of the subdivision is truly collegial, we doubt that the Act applies.

"Meeting"

"(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);"

Defining the scope of the term "meeting" is one of the most troublesome problems in interpreting and applying the Sunshine Act. The definition was revised frequently in the course of the legislative process, sometimes for obscure

See explanatory statement in regulations of the Interstate Commerce Commission, 42 F.R. 13796.

Id. A subdivision must have a specified membership in order to permit a determination as to the presence of a quorum. A gathering of less than a quorum of the full body does not become a subdivision merely because it is preparing a recommendation for the full body. 5See regulations of the Interstate Commerce Commission, 49 C.F.R. §1012.1(b), 42 F.R. 13796, 13798; Nuclear Regulatory Commission, 10 C.F.R. §9.101(a), 42 F.R. 12875, 12877.

GOVERNMENT IN THE SUNSHINE ACT

reasons, and the legislative history is not completely consistent. The definition of "meeting" consists of a number of distinct elements. First, the "meeting" must be of at least the number of agency members required to take action on behalf of the agency, that is to say, enough to constitute a quorum. S. Rept., 19. A gathering of less than a quorum does not ever constitute a "meeting" under the Act. S. Rept., 2-3. The size of a quorum is sometimes established by the agency's statute or by regulation. See FTC v. Flotill Products, Inc., 389 U.S. 179, 181-82 (1967). Where the statute and the regulations are silent, a majority of the membership constitutes a quorum. FTC v. Flotill Products, Inc., at 183; Ho Chong Tsao v. INS, 538 F. 2d 667, 669 (5th Cir. 1976). Where a subdivision is involved, it requires a quorum of the subdivision to constitute a meeting. Where a collegial body, whether agency or subdivision, consists in part of advice-and-consent appointees and in part of members otherwise selected, all members would be treated alike for purposes of determining the presence of a quorum (unless the rules applicable to the body itself made some distinction among members in defining a quorum).8

Second, the requisite number of members must be in a position to exchange views. They must at least be potentially involved in the discussion. The use of the word "joint" is intended to exclude instances where one or more agency

❝See Appendix C for a chronological chart of the definition of "meeting" as it evolved through the legislative history of the Sunshine Act.

"Nothing in the Act or its legislative history suggests that an agency may not adopt its own rules for determining a quorum in particular circumstances. For example, when the Federal Trade Commission, ordinarily a five-member agency, was reduced to three members by unfilled vacancies, it adopted a resolution which provided that "when the Commission is comprised of three members, two of those members can act for the Commission, one member not participating, so long as all members are aware of the proposed action and are afforded an opportunity to participate." 41 F.R. 25036; see 16 C.F.R. §4.14(b), 42 F.R. 13540.

Could it be argued that under such a rule where two members meet without notice to the third, no quorum is present and consequently there is no "meeting"? We do not believe so. The statutory reference is not to a "quorum" but to "the number of *** members required to take action on behalf of the agency." This means the number necessary to constitute a quorum at a properly called meeting; whether the same number of members is authorized to act at the particular gathering in question is not determinative.

The regulation of the Federal Election Commission, 11 C.F.R. §2.5, 42 F.R. 13202, counts only voting members to determine the presence of a quorum. See p. 12, infra.

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