GOVERNMENT IN THE SUNSHINE ACT tial for delay."13 Additionally, the Commission said that "because decisions to close meetings will have been examined by the General Counsel and voted on by the Commission, and will be founded on specific expectations that exempt material will be discussed, it is unlikely that a meeting will ever be closed without full consideration."14 In contrast, the regulation of the Commodity Futures Trading Commission permits any Commission employee to petition the Commission in writing to open a meeting or portion which might otherwise be closed if that employee's appointment, employment or dismissal is the subject of the meeting. The Commission will be required to open the meeting upon receipt of a petition from the employee.15 Public Availability of Vote, "Full Written Explanation" of Closing, List of All Attendees "(d) (3) Within one day of any vote taken pursuant to paragraph (1) or (2), the agency shall make publicly available a written copy of such vote reflecting the vote of each member on the question. If a portion of a meeting is to be closed to the public, the agency shall, within one day of the vote taken pursuant to paragraph (1) or (2) of this subsection, make publicly available a full written explanation of its action closing the portion together with a list of all persons expected to attend the meeting and their affiliation." Availability of Vote. Subsection (d) (3) first requires the agency to "make publicly available" "within one day"16 a 1342 F.R. 13539. 14Id. 1517 C.F.R. §147.5(e), 42 F.R. 13706. The following language in the Senate Report does suggest that where the decision to close is based on exemption (6), a person may waive his or her personal privacy interest and request that the meeting be open: "The main purpose of this exemption (6) is to protect an individual's privacy. It would clearly not be appropriate, therefore, to invoke this paragraph when the individual involved prefers the meeting to be open." S. Rept., 22. See also H. Rept. I, 11. The Federal Communications Commission has ruled, however, that an applicant for a broadcasting license was not entitled to demand that its application be considered at an open meeting instead of being disposed of by notation procedure. See Fifteen-Forty Broadcasting Corp., 42 Ad. L. 2d 86 (FCC, 1977). 16 The regulations of the Commodity Credit Corporation provide that such votes will be made publicly available "within one business day" of being taken, 7 C.F.R. §1409.6(b), 42 F.R. 14675, and presumably this will be the practical construction of the requirement at most agencies. GOVERNMENT IN THE SUNSHINE ACT "written copy" of any vote to open or close a meeting or portion of a meeting, or to withhold information about the meeting, taken either on the agency's own initiative under (d)(1) or at the request of an affected person under (d)(2). The Conference Report states that "when such vote is published, the vote of each individual member shall be set forth." Conf. Rept., 17. According to the House Government Operations Committee Report, "[A]ll such votes must be made public in this manner, even if the decision has been to keep the meeting open or to release the information in question." H. Rept. I, 13. The purpose of this requirement is to "enable the general public to be aware of an agency member's overall record on openness questions." Id. 17 "Full Written Explanation" of Closing. Subsection (d)(3) also requires that if the agency votes to close a meeting or portion of a meeting to the public, it must "make publicly available," again "within one day" of the vote to close, "a full written explanation" of its closing action as well as "a list of all persons expected to attend the meeting and their affiliation." How "full" must the written explanation be? The legislative history indicates that agencies have some discretion in preparing the explanation so as to inform the public without revealing the actual contents of closed meetings. According to the Senate and House Government Operations Reports, however, the explanations should be as detailed as possible without revealing exempt information. The Senate Report states, "The explanation should not only refer to the specific paragraph in subsection [c] which the agency is invoking, but explain why the specific discussion falls within the paragraph cited, the relative advantages and disadvantages to the public of holding the meeting in closed or open session, and why the agency concluded on balance that the public interest would best be served by closing the meeting. The explanation and the accompanying list need not disclose information described in subsection [c], where such disclosure would have the same undesirable effect as opening the meeting itself. In all but the most extraordinary circumstances, however, the agency should be able to give some specific explanation of its action. In such case, the agency must do so in as detailed terms as possible." S. Rept., 28. The House Report speaks in similar terms.18 17Subsection (d) does not, of course, require that agency members vote on whether to open or close each meeting. If there is no proposal before the agency to close a particular meeting, no vote need be taken or announced pursuant to subsections (d)(1), (3). 18H. Rept. I, 13-14. GOVERNMENT IN THE SUNSHINE ACT In order not to reveal such information, however, the explanation may have to be conclusory in some instances. In fact, the nature of the explanation is likely to depend on and vary with the particular exemption and the circumstances of the case. List of All Expected Attendees. The major interpretive question that has arisen with regard to this requirement is whether or not the listing of "all persons expected to attend the meeting and their affiliation" must include agency staff persons. A number of agencies took the position in their proposed regulations that the listing need not include staff personnel. 19 The legislative history is silent on the question. The language of (d)(3), however, refers to "all persons expected to attend" and makes no exception for agency staff. The FTC explained its rationale for not identifying staff as follows: “*** The Commission should give notice by rule that the list of expected attendees will not include the names of individual Commission employees or consultants. Besides the fact that the identities of staff attendees cannot always be predicted in advance, we think that the obvious purpose of the (d) (3) listing requirement is to reveal which persons or groups are privy to otherwise closed meetings. The public, however, already knows that the Commission consults with its own staff, and further advance disclosure as to which particular staffers will attend will unnecessarily burden the Commission without generating any public benefit. Also, of course, any comment made at a closed meeting by a staff member that cannot be protected under subsection (c) will appear in the publicly available version of the meeting transcript." Federal Trade Commission, Óffice of the General Counsel, "Implementation of the Government in the Sunshine Act: Staff Analysis," 24, reprinted in House Judiciary Oversight Hearing, 56.20 19 See, e.g., proposed regulations of the Federal Communications Commission, 41 F.R. 56676; Federal Election Commission, 42 F.R. 3810; and the Federal Trade Commission, 41 F.R. 55887. 20 The final FTC regulation adheres to this position but is modified "to provide affirmatively that any staff member may attend [closed] non-adjudicative meetings, and that certain specified staff members may attend [closed] adjudicative meetings, except to the extent that the notice of a particular closed meeting otherwise specifically provides." 42 F.R. 13539; see 16 C.F.R. §4.15(c)(1), 42 F.R. 13541, 43 F.R. 1937. Both the FEC and FCC, however, modified their rules and will list staff personnel. See 11 C.F.R. §3.3(d)(iii), 42 F.R. 13202; 47 C.F.R. §0.605(d)(3), 42 F.R. 12865, 12868. But see regulation of the Commission on Civil Rights, 45 C.F.R. §702.54(c)(2)(ii), 42 F.R. 14109. GOVERNMENT IN THE SUNSHINE ACT A literal reading of subsection (d) (3) would require the specific naming of agency staff members. A practical alternative is generic, organizational identification of staff participants in closed meetings, i.e., by bureau or division. The regulations of the Securities and Exchange Commission, for example, allow for such identification. Section 200.404(b)(2) of the SEC's rules provides that the Commission will make publicly available "a list describing generically or specifically the persons expected to attend the meeting and their affiliation." The SEC explains its use of the word "generically" as follows: "[It] is intended simply to permit the Commission to refrain from identifying by name all members of its own staff who might attend such a meeting. The Commission believes that the personal privacy and safety of staff members, coupled with the difficulty of predicting which of its employees are likely to attend, justify a provision of this nature." 42 F.R. 14692. In practice, the SEC has indicated the nature of the identification may vary, depending on whether or not it would indicate the subject matter of the closed meeting. If it would, then the Commission may provide generic description of expected staff attendees by bureau or division. If it would not, the Commission may make the specific names available.21 At a minimum, required agency listings should fully identify outside participants in closed meetings and provide in the listings a number or office location where additional information about closed meetings, including further staff identification, may be obtained. As the Senate Report indicates, however, the listing "need not disclose" the name and title of a staff member if the mere announcement of such information would have the effect of revealing the exempted subject matter of the closed meeting or portions. S. Rept., 28. And a number of agency regulations so provide.22 Expedited Closing Procedure "(d) (4) Any agency, a majority of whose meetings may properly be closed to the public pursuant to paragraph (4), (8), (9) (A), or (10) of subsection (c), or any combination thereof, may provide by regulation for the closing of such meetings or portions thereof in the event that a ma 21 Testimony of Harvey Pitt, General Counsel, Securities and Exchange Commission, House Judiciary Oversight Hearing, 81-82. 22See, e.g., regulations of the Commission on Civil Rights, 45 C.F.R. §702.54(c)(2)(ii), 42 F.R. 14109; and the United States Railway Association, 49 C.F.R. §903.8(f), 42 F.R. 14115. GOVERNMENT IN THE SUNSHINE ACT jority of the members of the agency votes by recorded vote at the beginning of such meeting, or portion thereof, to close the exempt portion or portions of the meeting, and a copy of such vote, reflecting the vote of each member on the question, is made available to the public. The provisions of paragraphs (1), (2), and (3) of this subsection and subsection (e) shall not apply to any portion of a meeting to which such regulations apply; Provided, That the agency shall, except to the extent that such information is exempt from disclosure under the provisions of subsection (c), provide the public with public announcement of the time, place, and subject matter of the meeting and of each portion thereof at the earliest practicable time." Subsection (d) (4) permits any agency, "a majority of whose meetings" may properly be closed under the exemptions for trade secrets (4), sensitive financial reports (8), sensitive financial information that might result in speculation (9)(A), or information regarding agency participation in adjudicatory proceedings or civil actions (10), to close such meetings by special regulation and under simplified, expediting procedures. Agencies can qualify under this subsection if they may close a majority of their meetings under any of the four cited exemptions, "or any combination thereof." The expedited closing procedures were originally intended for agencies regulating financial institutions, securities, and commodities, as well as agencies "whose primary or sole responsibility is to conduct adjudicatory proceedings." H. Rept. I, 14; S. Rept., 28-29. Congress recognized that such agencies "often have to conduct their sensitive business in private, and on short notice." S. Rept., 29. Furthermore, this business often concerns generic types of agenda items, each of which could be separately closed, but by a burdensome and unnecessarily repetitive procedure. Therefore, eligible agencies would be allowed to close discussion of such repetitive items by rule and with a reduced number of procedural requirements. Agencies which the legislative history specifically indicates were expected to be eligible under subsection (d)(4) include the Federal Reserve Board, the Securities and Exchange Commission, and the National Labor Relations Board. S. Rept., 29. A review of final agency regulations indicates that of 50 agencies covered by the Act, 18, including the Federal Reserve Board, the SEC, and the NLRB, will be invoking (d) (4) procedures. 23 23 The agencies and their regulations are as follows: Commodity Credit Corporation, 7 C.F.R. §1409.5, 42 F.R. 14674; Commodity |