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Furthermore, the rationale for departing from a literal statutory reading in the case of the prospective list, the difficulty in determining who will actually show up, is obviously not available in the case of the retrospective list, and so the clear statutory language should govern.

Maintenance of Transcript, Recording or Minutes

The third sentence of subsection (f) (1) requires each agency to make and maintain a complete verbatim transcript or electronic recording of each meeting or portion closed to the public, "except that for a meeting closed under exemptions (8) (bank reports), (9)(A) (information likely to lead to financial speculation), and (10) (adjudicatory proceedings or civil actions), the agency may elect to make either a transcript, a recording, or minutes." Conf. Rept., 20. If an agency makes an electronic recording rather than a written transcript of the meeting, how can the electronic recording indicate identities of participants as will be required to allow for a transcription under subsection (f) (2)? Using a court reporter or person with similar skills to make a transcript of the meeting might be prohibitively expensive and was not contemplated by Congress. See S. Rept., 40.13 Yet the Senate Report also contemplates that the taped record of the closed meeting be “adequate to identify each speaker." S. Rept., 31. The most promising possibilities are to use a two- or multi-track tape and have someone present at the meeting identify into a separate microphone each speaker, or immediately after the meeting to have someone record the identity of the speakers, "sound on sound," into a duplicate of the master tape. Since this recording would be a duplicate, any loss in comprehensibility of the discussion could be supplied from the master.

There is no requirement that a transcript, recording, or minutes be kept of each open as well as closed agency

12Letter of May 31, 1977 from Peter L. Strauss, General Counsel, Nuclear Regulatory Commission, commenting on the tentative edition of the Guide (hereinafter cited as "Strauss letter"); see 10 C.F.R. §9.108(a), 42 F.R. 12879.

13 Actual transcript cost figures, however, supplied by the Federal Communications Commission, indicate that the use of a court reporter and transcription system may not be prohibitively expensive. Thus, the FCC had projected prior to implementation of the Sunshine Act that costs for a six-week period would be $480.00 (based on four hours of closed meetings a week, with 50 pages per hour at 40¢ a page). In fact, the cost came to $371.30. Information supplied by Upton K. Guthery, Assistant Chief, Administrative Rules and Procedure Division, Federal Communications Commission.

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meeting. However, at least five agencies are planning to do

SO.14

Description of Minutes

The final sentence of subsection (f) (1) describes the minutes that are to be kept if the agency elects to maintain them instead of a transcript or recording of any meeting or portion closed pursuant to exemptions (8), (9)(A), or (10). “If minutes are kept, they must fully and clearly describe all matters discussed, provide a full and accurate summary of any actions taken and the reasons expressed therefor, and include a description of each of the views expressed on any item. The minutes must also reflect the vote of each member on any roll call vote taken during the proceedings and must identify all documents considered at the meeting." Conf. Rept., 20.

Public Access to and Agency Provision and Retention of Transcripts, Recordings, or Minutes.

"(f) (2) The agency shall make promptly available to the public, in a place easily accessible to the public, the transcript, electronic recording, or minutes (as required by paragraph (1)) of the discussion of any item on the agenda, or of any item of the testimony of any witness received at the meeting, except for such item or items of such discussion or testimony as the agency determines to contain information which may be withheld under subsection (c). Copies of such transcript, or minutes, or a transcription of such recording disclosing the identity of each speaker, shall be furnished to any person at the actual cost of duplication or transcription. The agency shall maintain a complete verbatim copy of the transcript, a complete copy of the minutes, or a complete electronic recording of each meeting, or portion of a meeting, closed to the public, for a period of at least two years after such meeting, or until one year after the conclusion of any agency proceeding with respect to which the meeting or portion was held, whichever occurs later."

Obligation of Agency to Make Meeting Record "Promptly Available." The language of the first sentence of subsection (f)(2) implies and the legislative history confirms that agencies are expected to make the meeting record materials avail

14See regulations of the Consumer Product Safety Commission, 16 C.F.R. §1012.6, 42 F.R. 14687; Federal Deposit Insurance Corporation, 12 C.F.R. §311.8(c), 42 F.R. 14678; Renegotiation Board, 32 C.F.R. §1482.5, 42 F.R. 12857; United States International Trade Commission, 19 C.F.R. §201.40(c), 42 F.R. 11245; and the Federal Trade Commission, 16 C.F.R. §4.9(b)(25), 43 F.R. 1937.

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able prior to the receipt of public requests for such materials. "The transcripts and recordings that may be made public must be promptly placed in a public document room. The agency must do this on its own initiative, rather than waiting until it receives a particular request." S. Rept., 32. Although the effect of section 552b(k) is to make the procedures, but not the exemptions, of the Freedom of Information Act, 5 U.S.C. §552, applicable to requests for transcripts, this does not release the agency from its duty to make these materials available even if no request is made for them. S. Rept., 39.

The agency must make the non-exempt transcripts, recordings, or minutes of meetings "promptly available" for free inspection, as well as provide copies for a fee, and the public must be granted access to such materials in a public reading room or some other "easily accessible," unrestricted place within the agency. S. Rept., 32. If the material is made available in the form of a recording, the agency must also see to it that listeners can identify each speaker.15

A few agency regulations fully comply with the legislative intent concerning public availability of and access to nonexempted transcripts, recordings, or minutes. The Renegotiation Board, for example, provides that recordings, with exempt matter excised, "together with an index of the subject matter thereon and suitable equipment for the review of such recordings and copies, shall be available to the public during the usual hours of business in the Public Information Office at the principal office of the Board."16 The U.S. International Trade Commission also spells out its provisions for public inspection of non-exempted material, including a special room equipped with tape recorders and earphones.17

A larger number of agency regulations, however, provide for the availability of and access to non-exempted material only "upon request."18 The Securities and Exchange Commission, for example, will make non-exempted material available for public inspection within twenty days of receipt

15S. Rept., 32. The Report expressed the expectation that "[w]here a meeting was unnecessarily closed to the public it should take the agency a week or less to make the record available to the public." Id. 1632 C.F.R. §1482.5(c), 42 F.R. 12857.

1719 C.F.R. §201.41, 42 F.R. 11246.

18See, e.g., regulations of the Harry S. Truman Scholarship Foundation, 45 C.F.R. §1802.7(d)(1), 42 F.R. 14725; National Council on Educational Research, 45 C.F.R. §1440.4, 42 F.R. 14722; National Science Foundation, 45 C.F.R. §614.4(a), 42 F.R. 14720; Overseas Private Investment Corporation, 22 C.F.R. §708.6(d), 42 F.R. 13112; and the Securities and Exchange Commission, 17 C.F.R. §200.408(a), 42 F.R. 14697.

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of a written request, or "within such extended period as may be agreeable to the person making the request." "19

Of course, the question is not whether the agency will make the materials available only upon request (presumably any procedure for making materials available in a public document room will involve a written or oral request to the file clerk), but how promptly the agency is prepared to respond to the request.20 This will ordinarily depend on whether the agency has reviewed the materials in advance of the request and determined which matters are to be made available to the public and which withheld. Some agencies are understandably reluctant to undertake this process of review until it becomes necessary to do so. Explaining why it does not plan to make materials available prior to request, the National Science Board stated:

"The Board has been conducting its meetings under the Act for several months, during which no request for a transcript or recording has yet been made. Preparation of a transcript or recording for release, with accompanying decisions on what will and will not be withheld, is costly. The Board's experience thus far indicates that anticipatory expenditure of the taxpayer's money for this purpose would be unjustified. Should the frequency of requests for transcripts materially increase, however, the Board will reconsider this matter." 42 F.R. 14719.

Those rules providing for availability "upon request" appear to place the burden upon the member of the public to request an agency, in effect, to "declassify" and release transcripts, recordings, or minutes of closed meetings. The Act, however, places the burden on the agency quickly to review its meeting records to determine what can be released. This burden is consistent with the burden imposed on the agency to justify its closed meetings and the withholding of information. Moreover, concern for costs of transcripts is not an appropriate rationale for making these materials available only upon request since the agency is not required to provide a transcript; it may provide an edited tape.

One agency, the Federal Communications Commission, has adopted a somewhat different approach. The FCC will maintain a public file of transcripts of closed meetings on the basis of a screening of the material by Commission bureau chiefs:

"If, after the meeting, the responsible Bureau or Office

1917 C.F.R. §200.408(a), 42 F.R. 14697.

20 For discussion of the definition of "promptly available" under the Freedom of Information Act, see Aviation Consumer Action Project v. CAB, 418 F. Supp. 634, 638 (D.D.C. 1976).

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Chief decides, in light of the discussion which in fact took place, that the meeting could have been open to the public or that the reason for withholding information no longer pertains, he will direct the Secretary to place the transcript in the public file. If the sole reason for closing the meeting was to avoid frustrating a Commission action, for example, the transcript will be placed in the public file after the action is taken. In addition, if a request for inspection of a transcript is granted, in whole or in part, the transcript, or portion thereof, which is made available will thereafter be maintained in the public file. Where the transcript is not maintained in the public file, requests for copies must be reviewed by the responsible Bureau or Office Chief and in some cases, possibly, by the Commission." 42 F.R. 12866.

Whether this procedure is consistent with the legislative intent of subsection (f)(2), as expressed in the Senate Report, is a close question. The procedure appears to deal satisfactorily with the situation where the transcript contains no exempt material, but does not provide for the editing of transcripts to delete exempt material in advance of requests. On the other hand, it is not clear from the Commission's description of its procedure whether the "transcript" referred to is the transcript of the entire closed meeting or of the discussion of a particular agenda item.21 If the reference is to the latter, it is at least arguable that the Commission is within its rights in resting on the responsible Bureau Chief's determination that the "item of discussion" contains information which may be withheld. Thus, the appropriate procedure to make the transcript "promptly available" depends to some extent on one's view of the scope of the agency's duty to segregate exempt from non-exempt material in the transcript.

Standard for Deletion; Extent of Agency's Duty to Edit the Record. Subsection (f) (2) requires disclosure of "the discussion of any item on the agenda, or of any item of the testimony of any witness received at the meeting, except for such item or items of such discussion or testimony as the agency determines to contain information which may be withheld under subsection (c)." The general standard governing deletion of information from a closed meeting transcript, recording, or minutes is that the deleted material must be exempt under subsection (c). Conf. Rept., 20; S. Rept., 31; H. Rept. I, 15. This standard presumably also requires the agencies to determine whether the public interest requires disclosure, notwithstanding the availability of an exemption.

21 The Commission staff advises that a separate transcript is made of each item on the agenda of a Commission meeting.