GOVERNMENT IN THE SUNSHINE ACT

The procedure adopted by the Nuclear Regulatory Commission has certain obvious advantages. If an agency feels it must itself decide whether to withhold or release transcript material, the best time to do so would be right after the meeting when the matter is still fresh in the members' minds. Such a procedure would be particularly desirable for those agencies whose members meet infrequently.

Subsequent Review of Transcript Material. The agency's duty under subsection (f) (2) to make materials promptly available includes, as we have seen, a review of the recording, transcript, or minutes contemporaneous with or shortly after the meeting itself. Generally, the considerations of confidentiality which justified closing the meeting will continue to be present when the transcript is reviewed. However, with the passage of time the need for confidentiality will in many cases disappear. For example, where a meeting is closed pursuant to exemption (9)(B) to prevent frustration of a proposed agency action, public announcement of the agency action would end the need to maintain the confidentiality of the preceding deliberations. The Senate Report contemplates that agencies will release transcript material once the need for confidentiality disappears. S. Rept., 32. To do so on a systematic basis, however, would require some procedure for review of previous determinations. to withhold in the light of changed circumstances. Senator Chiles addressed this problem briefly on the Senate floor, stating:

"I might further add that an agency will not have to review continually the sensitivity of the transcripts of its board meeting. A periodic review at reasonable intervals is all that is needed." 121 Cong. Rec. 35329.

A few agency regulations recognize this need to review closed meeting records and to release initially exempted and withheld information.39 The Nuclear Regulatory Commission, for example, provides, "If at some later time the Commission determines that there is no further justification for withholding any transcript, recording or other item of information from the public which has previously been withheld, then such information shall be made available." 10

(f)(2). See text at note 30, supra; regulations of the Federal Maritime Commission, 46 C.F.R. §503.71, 42 F.R. 12050, 12052; and the Securities and Exchange Commission, 17 C.F.R. §200.404, 42 F.R. 14696.

39See, e.g., regulations of the National Science Board, 45 C.F.R. §614.4(c), 42 F.R. 14720; National Council on Educational Research, 45 C.F.R. §1440.4(c), 42 F.R. 14722; Nuclear Regulatory Commission, 10 C.F.R. §9.108(d), 42 F.R. 12879.

GOVERNMENT IN THE SUNSHINE ACT

C.F.R. §9.108 (d), 42 F.R. 12879. Other agencies presumably rely on their procedures for handling requests for transcripts to provide the occasion for reconsideration of previous decisions to withhold. Thus, the Federal Communications Commission, in rejecting as “impracticable" a suggestion that transcripts of closed meetings be reviewed regularly to determine whether they could be made available, stated, "Transcripts may be placed in the public file just after the meeting is held, but otherwise will be reviewed only when requests for copies are received." 42 F.R. 12867. Once such a review leads to release of a transcript it is placed in the public file. However, the FCC declined to "undertake to issue a public notice every time a transcript of a closed meeting is released." Id.

It is doubtful that there is a single ideal procedure for handling the problem of reconsideration of decisions to withhold transcript material in the light of changed circumstances. The needs and experiences of agencies will vary. Where the demands for such materials are frequent, it would be unreasonable to expect agencies to reexamine their previous decisions each time a request is made. A procedure for systematic and periodic review appears preferable. On the other hand, where demands are few, an agency, having fulfilled its initial responsibility to make non-exempt material available, might then review its determination only in response to a request. In any event, once it decides to release material previously withheld, an agency should provide some means for bringing this action to the attention of the interested public. If the issuance of a public notice for each release would be too burdensome, as the FCC believes, perhaps the maintenance of an index or periodic listing of available transcripts would suffice.

Administrative Appeal Procedures. A number of Sunshine Act regulations provide either for administrative appeals from determinations to withhold closed meeting transcripts, recordings, or minutes under subsection (f) (2)40 or, more generally, for administrative review of any agency action under the Act and regulations.41

40See, e.g., regulations of the Federal Energy Regulatory Commission, 18 C.F.R. §1.3a(e)(5), 42 F.R. 14701; Consumer Product Safety Commission, 16 C.F.R. §1012.6(a)(3)(v), 42 F.R. 14688; the Renegotiation Board, 32 C.F.R. §1482.5(e), 42 F.R. 12857; and the Tennessee Valley Authority, 18 C.F.R. §301.48(c), (d), 42 F.R. 14088. 41See, e.g., regulations of the National Commission on Libraries and Information Science, 45 C.F.R. §1703.501, 42 F.R. 13556; the United States Civil Service Commission, 5 C.F.R. §295.501, 42 F.R. 13011; and the United States Commission on Civil Rights, 45 C.F.R. $702.57, 42 F.R. 14110.

GOVERNMENT IN THE SUNSHINE ACT

The time limits in these regulations differ, reflecting division among the agencies over whether or not to apply FOIA time limits to requests for access to and appeals from withholding of Sunshine Act transcripts, recordings or minutes. As noted in our subsequent discussion of subsection (k),42 some agencies have adopted FOIA procedures and limits, some have established special Sunshine Act procedures and limits, and some do not specify any procedures or limits.

Still other agencies have adopted access and appeals procedures and time limits distinct from, but not inconsistent with, the procedures and time limits of the FOIA. These agency regulations provide for an administrative appeal within a prescribed time period, typically within 20 to 30 days of receipt of a denial, or partial denial by the agency.43 Two of the three agencies whose regulations provide generally for administrative review "will respond within two working days to objections concerning decisions to close meetings or portions thereof," while "[r]esponses to objections concerning matters other than closed meetings will be made within ten working days."44

Besides prescribing the form for the requests (generally, in writing and with reasonable detail) and to whom they should be sent (the agency members, the Chairman, a General Manager, etc.), a few of the regulations also specify the form to be taken by the agency's response to the request for appeal or review. These regulations provide that if the final determination on appeal is to deny all or part of the request, written notice will be provided to the requester, including a statement of the reasons for the denial, short of disclosing exempt information, and a notice of the person's right to seek judicial review under 5 U.S.C. §552b(h).45

Because the Sunshine Act exemptions are permissive and not mandatory,46 agencies, in making final determinations on appeal, may, of course, waive any exemptions initially relied upon to withhold closed meeting records.47

42 See pp. 99-101, infra.

43 See, e.g., regulation of the Tennessee Valley Authority, note 40, supra, which provides that an appeal must be taken within 30 days after receipt of a determination to withhold a closed meeting record. 44See regulations of the National Commission on Libraries and Information Science and the United States Civil Service Commission, note 41, supra.

45See, e.g., the regulations of the Consumer Product Safety Commission and the Tennessee Valley Authority, note 40, supra.

46 See S. Rept., 20.

47See, e.g., regulations of the Tennessee Valley Authority, note 40, supra.

GOVERNMENT IN THE SUNSHINE ACT

In our subsequent discussion of subsection (k), we conclude that the Freedom of Information Act should govern requests for access under subsection (f)(2). Hence, an agency's access and appeals procedures should be consistent with the procedures, particularly the time limits, of the FOIA.

Fees for Furnishing Copies. The second sentence of subsection (f)(2) provides that the agency shall furnish copies of a closed meeting transcript, transcription of a recording,48 or minutes, "at the actual cost of duplication or transcription."

The Senate and House Reports anticipated regulations establishing a uniform fee schedule, with provision for waiver or reduction of fees when such action is in the public interest. See S. Rept., 32; H. Rept. I, 15; H. Rept. II, 16. The fees are to be "limited to reasonable standard charges for duplication ***." S. Rept., 32. "In no instance should fees be set with the purpose of discouraging public requests for transcripts or transcriptions; their sole purpose is to permit recovery of some or all of the direct cost of providing them." H. Rept. I, 16.

The majority of agency regulations appear to be fulfilling this Congressional intent, setting a fee schedule, waiving or reducing fees in the public interest, and holding fees at reasonable levels to reflect actual costs.49 A few regulations are particularly comprehensive, waiving all charges, for example, below $25,50 or providing for notification of anticipated fees over $25.51 Some regulations also specify that there will be no charge for a record search or transcription.52

48 The transcription must disclose "the identity of each speaker." 5 U.S.C. §552b(f)(2). The Senate Report also states that "if a person requests a copy of a tape, rather than a transcription of it, this should also be provided at the actual cost of copying." S. Rept., 32. See also discussion of means to identify participants on electronic recording, p. 65, supra.

49See, e.g., regulations of the Consumer Product Safety Commission, 16 C.F.R. §1012.6(a)(vi), 42 F.R. 14688; the Renegotiation Board, 32 C.F.R. §1482.5(f), 42 F.R. 12857-58; and the Civil Service Commission, 5 C.F.R. §295.404, 42 F.R. 13011.

50See, e.g., regulations of the Consumer Product Safety Commission, note 40, supra.

51See, e.g., regulations of the Renegotiation Board, note 40, supra. 52See, e.g., regulations of the Federal Communications Commission, 47 C.F.R. §0.607(b), 42 F.R. 12869. The FCC is imposing no transcription fee because it "can devise no equitable way of dividing the transcription costs among the several persons to whom copies may be furnished at different times." 42 F.R. 12867.

GOVERNMENT IN THE SUNSHINE ACT

Other fee regulations, however, appear to depart from Congressional intent. Instead of setting a fee schedule, for example, two agencies provide that requesters for closed meeting records must include a statement in their request, "that whatever costs are involved in furnishing the records will be acceptable or alternatively, that costs will be acceptable up to a specified amount."53 The National Science Foundation requires that requests "contain a promise to pay the costs of any duplication or transcription requested."54 Nor do these agencies provide for a waiver or reduction of fees in the public interest, while the Federal Communications Commission will waive all charges if it serves "the financial or regulatory interests of the United States."55 Although the waiver or reduction of fees is discretionary with the agencies, the better practice would be to provide for it specifically in the regulations so that members of the public may make the necessary request for the waiver or reduction. Similarly, agencies should publish fee schedules to inform the public of copying fees. Publication of a uniform fee schedule would also help assure regularity and non-discrimination in charges.

Maintenance and Use of Verbatim Copies of Transcripts, Recordings, or Minutes. The final sentence of subsection (f) (2) requires the agency to maintain a complete, verbatim copy of the transcript, minutes, or recording of a closed meeting "for at least two years after the meeting or one year after the conclusion of the agency proceeding which was the subject of the meeting, whichever occurs later." Conf. Rept., 20. The only elaboration on this section in any of the legislative reports is contained in the Senate Report which adds that "[i]f an agency discusses the initiation of a proposed investigation at a closed meeting, the record should be retained until the investigation, and any agency adjudication arising from it, is completed and final agency action taken." S. Rept., 32.

53See regulations of the National Mediation Board, 29 C.F.R. §1209.15, 42 F.R. 14717, and the United States Railway Association, 49 C.F.R. §903.16(c)(2), 42 F.R. 14115.

54 See 45 C.F.R. §614.4(d), 42 F.R. 14720.

55 See 47 C.F.R. §0.607(b), 42 F.R. 12869. The FCC explains in the preamble to its final regulations, "It would serve the regulatory interests of the Commission to waive the fee if the party seeking the transcript can use it to make a contribution to a proper public interest determination and cannot afford to pay the duplicating charges." 42 F.R. 12867.