GOVERNMENT IN THE SUNSHINE ACT

Voting to Close by Notation Procedure. The legislative history is clear that a vote on whether or not to close a meeting or to withhold information about the meeting need not itself be taken at a gathering of agency members but can be taken by means of a seriatim notation procedure, such as the circulation of a written ballot or tally sheet. H. Rept. I, 3, 13. Where the members do convene to vote, however, this gathering is not a "meeting" within the definition of the Act, and, therefore, none of the Act's requirements regarding meetings is applicable.

Meaning of "Portion or Portions." Neither the statute nor the legislative history defines "portion or portions" of a meeting. The reference might be to an individual agenda item or to specific issues considered with respect to a particular agenda item. But since the justification for closing a meeting is in every case the harm to be feared from the public disclosure of particular information, the practical definition of "portion of a meeting" is that part during which it is reasonably anticipated that such information may be discussed. However defined, each portion of each meeting stands on its own for purposes of complying with the closing requirements of subsection (d)(1). "The fact that one portion of a meeting may be closed does not justify the closing of any other portion." Conf. Rept., 17.

"Series of Meetings" Procedure

Subsection (d) (1) also permits a single vote to close "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," as long as each meeting in the series "involves the same particular matters and is scheduled to be held no more than thirty days after the initial meeting" in the series.

The Senate Report discusses this single vote closing procedure specifically:

"A single vote can be taken *** to close a series of meetings where all the meetings will be held within a 30day period and involve the same 'particular matters.' The latter phrase means more than general similarity of content. It must involve the same agenda item, such as a par

1See p.11, supra.

2"In practice, a 'portion' of a meeting for Sunshine purposes is that unit of discussion further subdivision of which would interfere with the conduct of agency deliberations. That is to say, a 'portion' is a discussion that could not reasonably be further segregated into an open portion and closed portion." Letter of May 31, 1977 from Michael N. Sohn, General Counsel, Federal Trade Commission, commenting on the tentative edition of the Guide.

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ticular bank application, a proposal to suspend trading in a particular security, or the like." S. Rept., 27.

The Senate Report goes on, "This provision was added so that the agency would not have to vote repeatedly on whether to close the same discussion which stretches over more than one meeting." Id.3

Recorded Vote and No Proxies

The legislative history says little concerning the requirement of a recorded vote. Nor does it explain the clause “no proxies shall be allowed." Concerning the record vote, the House Government Operations Committee Report states that "the vote of each agency member must be recorded so as to permit identification by name of how each member has voted." H. Rept. I, 13. The Senate Report notes that "the voting procedures specified in paragraph (1) are equally applicable to the other votes an agency may be required to take pursuant to this [Act]." S. Rept., 27. Hence, a recorded vote is also required under subsections (d) (2) (voting to close a meeting on the request of an affected individual), (d)(4) (the expedited closing procedure), (e)(1) (scheduling a meeting less than a week in advance), and (e) (2) (changing the subject matter or open-closed status of a previously announced meeting).

With regard to the use of proxies the legislative history states that "no proxy votes may be cast in a vote on whether to close a meeting." H. Rept. I, 13; see also S. Rept., 27. Does this mean that each member must be physically present to vote or can he delegate and instruct a staff assistant to cast the vote?

Since the Sunshine Act permits agency members to conduct business, including the determination whether or not to close agency meetings or portions thereof, by notation procedure, physical presence is not essential and there should be no objection to permitting a staff assistant to cast a vote on a subsection (d) (1) matter under instructions from his member. In either case, the decision and the responsibility are the member's.

In other contexts courts have upheld a practice under which staff members vote for agency members at their direction, Eastern Air Lines, Inc. v. CAB, 271 F.2d 752, 757-58 (2d Cir. 1959), cert. denied, 362 U.S. 970 (1959), but have struck

Another example of a situation where closing a series of meetings by a single vote might be appropriate would be where an agency in advance of conducting a public investigatory hearing votes to close off-the-record consultations among the members on lines of questioning, issuance of subpenas, or other problems arising in the course of the hearing.

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down a practice under which staff personnel cast their members' votes under a general authority, see KFC National Management Corp. v. NLRB, 497 F.2d 298, 303-06 (2d Cir. 1974), cert. denied, 423 U.S. 1087 (1976); Flav-O-Rich, Inc. v. NLRB, 531 F.2d 358 (6th Cir. 1976). We believe that a similar rule should apply here.4

Requests to Close Meetings

"(d) (2) Whenever any person whose interests may be directly affected by a portion of a meeting requests that the agency close such portion to the public for any of the reasons referred to in paragraph (5), (6), or (7) of subsection (c), the agency, upon request of any one of its members, shall vote by recorded vote whether to close such meeting."

This "request to close" provision raises a number of questions on which the legislative history provides scanty guidance. The Senate Report provides the only extensive discussion of subsection (d)(2). It notes that

"[i]n some cases a person may believe that an agency meeting directly affecting him would constitute an invasion of personal privacy [exemption 6], accuse him of criminal charges [exemption 5], or disclose information affecting him in an investigatory file [exemption 7]. The subsection specifically recognizes the right of a person in such circumstances to ask the agency to close the meeting. If one member of the agency concludes that the person may be directly and adversely affected by holding the meeting in public, the entire agency must vote on whether to close the meeting." S. Rept., 28.

According to the Senate Report

"[t]he purpose of this clause is to insure that an agency considers any person's legitimate concern that an open meeting may harm him in a direct and personal manner. It should help guarantee, for instance, that an agency does not inadvertently overlook the possibility that a particular discussion, if held in public, would constitute an invasion of personal privacy or disclose the identity of a confidential source." Id.

Does subsection (d) (2) give a person whose interests may be adversely affected by disclosure a right to compel the agency to close a meeting? The statute provides simply a procedural right before the agency; however, it does indicate a special concern that the agency strike an appropriate balance between the public interest in openness and the personal interests expressed by exemptions (5), (6), and (7).

4See, e.g., regulation of the Federal Trade Commission, 16 C.F.R. §4.14, 42 F.R. 13538, 13540-41.

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Although it is clear that an agency is not required to close a meeting in response to a request under subsection (d) (2) simply because one of those exemptions is available, it is likely that an agency refusal to close a meeting would be reviewable in court under the arbitrary-and-capricious standard, just as an agency refusal to invoke an exemption under the Freedom of Information Act is so reviewable, see Pennzoil Co. v. FPC, 534 F.2d 627, 630-32 (5th Cir. 1976).

Requests to Close on Other Grounds. While subsection (d)(2) requires a procedure to permit agency consideration of requests to close under exemptions (5), (6), and (7), nothing in the Act prevents an agency from making such procedure available for requests under exemption (4) or any of the other exemptions. At least three agencies have such a provision in their regulations. The Federal Trade Commission's regulations permit "[a]ny persons whose interest may be directly affected if a portion of a meeting is open [to] request that the Commission close that portion for any of the reasons described in 5 U.S.C. §552b(c)."5 The vote of one member is sufficient to bring any such request to the Commission for vote. The Renegotiation Board has a similar provision. The Interstate Commerce Commission will allow requests under exemptions (4) and (9)(A) as well as (5), (6) and (7). An agency refusal to close a meeting on grounds other than exemptions (5), (6), and (7) is probably judicially reviewable at the instance of one who can show he is adversely affected or aggrieved by the decision, whether or not the agency has a procedure for entertaining such requests. See 5 U.S.C. §702.8 However, subsection (d)(2), where applicable, at least obviates objections based on lack of standing.

Procedures Under Subsection (d)(2). Neither the Act nor its legislative history provides specific guidance on the nature of the procedures agencies must follow under subsection (d)(2), whether, for example, an agency must provide an affected person advance notice of a meeting so the person can request a closing under (d)(2). In most cases, agency members will be aware of or may assume the affected person's desire for a closed meeting at the time of the initial vote to close or open the meeting. If, however, the request is made subsequent to

516 C.F.R. §4.15(b)(2), 42 F.R. 13541. 632 C.F.R. §1482.4(d), 42 F.R. 12857. 749 C.F.R. §1012.6(c), 42 F.R. 13799. See p. 89, infra.

Although the scheme of the Act seems to contemplate that (d)(2) rights are to be exercised between the (e) (1) notice and the meeting, see regulation of the Civil Aeronautics Board, 14 C.F.R. §310b.8(b), 42 F.R. 14682, conceivably, a request to close could be made before

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the announcement of a decision to hold a meeting, there must be some procedure at the instance of a single member for reconsideration, or for initial consideration by the collegial body if the item was placed on the "open agenda" without collegial action. 10 Any decision to close under subsection (d)(2), whether initially or on reconsideration, would have to follow the voting and other requirements of subsections (d)(1), (d)(3), (e) and (f).11

Requests to Open Meetings. Some agencies provide in their regulations for requests to open as well as to close agency meetings. 12 One agency, the Federal Trade Commission, considered amending its proposed rules to allow requests to open meetings but decided not to do so "because of the poten

the notice is issued. The Federal Trade Commission, for example, amended its proposed Sunshine rules to provide in its final regulations that instead of such requests being filed "promptly after the Commission's announcement of an open meeting," they now may be filed "even before meeting announcements, when that is the earliest practicable time." 16 C.F.R. §4.15(b)(2), 42 F.R. 13539.

10 For example, the Nuclear Regulatory Commission (NRC) provides for reconsideration of any decision to open or close a meeting. The NRC's regulation states that

***** any person may petition the Commission to reconsider its action *** by filing a petition for reconsideration with the Commission within seven days after the date of such action and before the meeting in question is held. *** A petition for reconsideration * * *shall state specifically the grounds on which the Commission action is claimed to be erroneous, and shall set forth, if appropriate, the public interest in the closing or opening of the meeting." 10 C.F.R. §9.106(b), (c), 42 F.R.

12878.

Concern about such a reconsideration procedure resulting in delay of agency meetings is addressed elsewhere in the NRC's regulation. It states, "The filing of such a petition shall not act to stay the effectiveness of the Commission action or to postpone or delay the meeting in question unless the Commission orders otherwise." Id.

11See, e.g., regulations of the Federal Maritime Commission, 46 C.F.R. §503.75, 42 F.R. 12053; and the Civil Service Commission, 5 C.F.R. $295.203(c), 42 F.R. 13010. See also regulations of the Federal Communications Commission, 47 C.F.R. §242a.6(e), 42 F.R. 12855; and the Securities and Exchange Commission, 17 C.F.R. §200.409, 42 F.R. 14697, which spell out the procedures to be followed when a person requests that a meeting be closed or open.

12See, e.g., regulations of the Civil Aeronautics Board, 14 C.F.R. §310b.8, 42 F.R. 14682; Federal Communications Commission, 47 C.F.R. §0.606(b)(3), 42 F.R. 12868; Interstate Commerce Commission, 49 C.F.R. §1012.6, 42 F.R. 13799; Securities and Exchange Commission, 17 C.F.R. §200.409(b), 42 F.R. 14697; Nuclear Regulatory Commission, 10 C.F.R. §9.106(b), 42 F.R. 12878.