Procedures for

Announcing Meetings

"(e) (1) In the case of each meeting, the agency shall make public announcement, at least one week before the meeting, of the time, place, and subject matter of the meeting, whether it is to be open or closed to the public, and the name and phone number of the official designated by the agency to respond to requests for information about the meeting. Such announcement shall be made unless a majority of the members of the agency determines by a recorded vote that agency business requires that such meeting be called at an earlier date, in which case the agency shall make public announcement of the time, place, and subject matter of such meeting, and whether open or closed to the public, at the earliest practicable time."

This subsection generally requires advance public notice of all agency meetings, whether open or closed, and of changes in meetings previously announced. Agencies must make such information available “in order to make the public's right to attend a meeting meaningful." S. Rept., 29.

Contents and Timing of Advance Notice

Subsection (e) (1) requires that for each of its meetings, an agency must "make public announcement, at least one week before the meeting," of 1) the time of the meeting; 2) the place of the meeting; 3) the subject matter of the meeting; 4) whether the meeting is to be open or closed to the public; and 5) the name and phone number of the official designated by the agency to respond to requests for information about the meeting.

Although the majority of agency regulations repeat the seven-day requirement, a number of agencies provide a slightly longer notice period. For example, the United States International Trade Commission has set a ten-day notice period. Explaining its action, the Commission stated that its experience "in operating 'in the sunshine"" under the oneweek notice provision in its proposed rules "demonstrated that a one-week period may not be sufficient in order to insure that notices will be published in time for subscribers to the Federal Register to receive them and make plans to attend

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Commission meetings or that [notices] will be otherwise available."1

Public announcement seven days in advance of the meeting will frequently provide inadequate notice, especially because of the lag between submission to and publication in the Federal Register.2 Consequently, agencies should attempt to provide longer notice wherever possible and should also seek to use additional means of notification which may reach the interested public more quickly and effectively than Federal Register notice.3

Concerning the contents of the announcement, the Senate Report states,

"The identification of the subject matter must be adequate to inform the general public thoroughly, referring, for example, to a specific docket number, the name of the applicant, the identity of the proposed rule, and the like. Reference to a generic subject matter, such as 'consumer complaints,' or 'applications for new routes,' does not meet the requirements of this subsection." S. Rept., 29

30.

Withholding Notice Information. However, any description of the subject matter can be withheld "for the same reasons that may require the agency to close the meeting in the first place." S. Rept., 10. Section 552b (c) permits basic "information pertaining" to a meeting, otherwise required by subsections (d) and (e) to be made public, to be withheld from the public if disclosure "would disclose the very information that the meeting itself was closed to protect." S. Rept., 20.

142 F.R. 11242. See 19 C.F.R. §201.35, 42 F.R. 11244. Eight-day notice periods have been established by the Foreign Claims Settlement Commission, 45 C.F.R. §504.25(d), 42 F.R. 11011; Inter-American Foundation, 22 C.F.R. §1004.6(c), 42 F.R. 20462; and the Commission on Civil Rights, 45 C.F.R. §702.55, 42 F.R. 14109. The Harry S. Truman Scholarship Foundation will provide seven days' notice counting from the date of publication in the Federal Register, 45 C.F.R. §1802.5, 42 F.R. 14724. On the other hand, the Federal Trade Commission rejected a suggestion that it issue public announcements ten days before meetings. "The Commission believes that one week's advance notice, as specified in the Sunshine Act, is adequate, and that increasing the amount of advance notice would result in more changes in announcements." 42 F.R. 13539.

2Normally, a document is published in the Federal Register on the third work day after it is received. The Federal Register has, however, adopted a procedure for expedited service on Sunshine meeting notices. 42 F.R. 15482, 31205. See pp. 54-55, infra.

See p. 55, infra.

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A decision to withhold information otherwise required for the public announcement is, of course, subject to the procedural requirements of subsection (d)(1), S. Rept., 27, and must be based on one or more of the exemptions in subsection (c). While the decision as to what information to withhold will unquestionably depend on the circumstances of the particular case, the better agency practice would be not to dispense with all the public notice requirements of subsections (d)(3) and (e), except under the most extraordinary circumstances.5 For example, the Federal Communications Commission stated that it would proceed as follows: First, "notice of all open and closed meetings will be given," 47 C.F.R. §0.605(a), 42 F.R. 12868. Second, if the meeting is closed, "the agency may omit from the announcement information usually included, if and to the extent that it finds that disclosure would be likely to have any of the consequences listed in [the exemptions section]." 47 C.F.R. §0.605(d)(4), 42 F.R. 12868. Third, the FCC notes that it does not read the exemption language in 5 U.S.C. §552b(c) "as permitting an agency to withhold notice of a meeting," 42 F.R. 12866. However, the Commission does interpret the language "to mean that certain of the information usually contained in the notice may be omitted if there is a valid basis for omitting such information under subsection (c) of the Act." Id. The Commission then goes on to explain the requirements and circumstances under which it will withhold some, but not all, notice information:

"A separate vote to withhold information is required, and the basis for withholding information must be reasonably related to the act of withholding as opposed to the act of closing the meeting. For example, if the meeting involved accusing a person of a crime, we would announce the time and place of the meeting, the fact that it involved a criminal accusation and was being closed for that reason, the vote on the question of closing the meeting and on that of withholding information, and the name and phone number of the Public Information Officer. The name of the person involved would be withheld. To take a more extreme example, if a meeting involved a freeze on the filing of applications and notice of the fact would frustrate the purpose of the freeze, the subject matter of the meeting would be withheld; the other information would be set out in the notice." Id.

'See, e.g., regulation of the Nuclear Regulatory Commission, 10 C.F.R. §9.105(c), 42 F.R. 12876, 12878.

"See proposed regulation of the Interstate Commerce Commission, 41 F.R. 56341.

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Providing Shorter Notice. Subsection (e) (1) also allows an agency to shorten the one-week advance notice of its meetings if "a majority of the members of the agency" votes by recorded vote "that agency business requires" the meeting to be held with less than seven days notice. In such a case, the requisite public announcement of the time, place, subject matter, and open-closed status of the meeting must still be provided "at the earliest practicable time."

Legislative history indicates that this "escape clause" allowing for shorter notice is not to be relied upon routinely but should be primarily used to deal with emergency, latebreaking items. Thus, the Senate Report notes,

"This provision allows agencies to schedule a meeting where consideration of an emergency matter can not be delayed 7 days. It recognizes that the public interest in obtaining rapid agency action may at times override the public interest in receiving advance notice of meetings. This clause does not, however, allow an agency to wait until the last moment to schedule a meeting when agency business truly requires it, if the meeting could have been scheduled in time to give the public a week's notice." S. Rept., 30.

A few agencies reflect this emergency emphasis in their final regulations implementing 5 U.S.C. §552b(e)(1). Most, however, merely repeat the statutory language and do not emphasize the emergency nature of the clause.

The better agency practice would be to place procedural limits or to impose criteria on the use of the shorter notice. For example, the Federal Communications Commission will provide in the announcement of any last-minute meeting the vote of each agency member on the decision to give less than seven days notice. The announcement will also "specify the nature of the emergency situation if it is not clear from the subject matter." 47 C.F.R. §0.605(e), 42 F.R. 12864, 12868. When the International Trade Commission calls a meeting on short notice, it will "apprise interested members of the public that such an 'emergency' meeting is being held" by promptly posting public notices on agency bulletin boards, immediately sending out copies of the notice to a mailing list and "when advance notice is very short, [b]y telephoning interested and affected persons." 42 F.R. 11242.

The public announcement required under the "shorter notice" clause of (e)(1) must be made "at the earliest practi

❝See, e.g., regulations of the Civil Service Commission, 5 C.F.R. §295.208, 42 F.R. 13011; United States Railway Association, 49 C.F.R. §903.6, 42 F.R. 14114.

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cable time." The legislative intent as expressed in the Conference Report is that "such announcements be made as soon as possible, which should in few, if any, instances, be later than the commencement of the meeting or portion in question." Conf. Rept., 18. The Senate Report states,

"If the need is genuine, however, the announcement may be made only hours in advance of the meeting. In the unusual case, the announcement may have to be issued simultaneously with the convening of the meeting. Or a meeting which has already started as an open one may suddenly have to be closed if some sensitive matters unexpectedly arise." S. Rept., 30.

The Senate Report adds, however, that "even if, in such circumstances, the public does not in fact learn of the meeting until after it has occurred, the announcement must be made to provide a record of such meetings." Id.

The last-minute announcement must be posted by the agency as well as published in the Federal Register under subsection (e)(3). Legislative history indicates that the vote to conduct the last-minute meeting should also "be made public as promptly as it [is] physically possible." H. Rept. I,

15.

Changing the Time, Place, Subject Matter, or Decision to Open or Close

"(e) (2) The time or place of a meeting may be changed following the public announcement required by paragraph (1) only if the agency publicly announces such change at the earliest practicable time. The subject matter of a meeting, or the determination of the agency to open or close a meeting, or portion of a meeting, to the public, may be changed following the public announcement required by this subsection only if (A) a majority of the entire membership of the agency determines by a recorded vote that agency business so requires and that no earlier announcement of the change was possible, and (B) the agency publicly announces such change and the vote of each member upon such change at the earliest practicable time."

Subsection (e) (2) allows for changes in the time, place, subject matter, or open-closed status of a meeting, after the agency has already scheduled the meeting and publicly announced it.

Changing the Time or Place. The agency may change the time or place of a meeting after the public announcement "only if the agency publicly announces [the] change at the earliest practicable time." Agency members, however, need