Judicial Review of "(h) (1) The district courts of the United States shall have jurisdiction to enforce the requirements of subsections (b) through (f) of this section by declaratory judgment, injunctive relief, or other relief as may be appropriate. Such actions may be brought by any person against an agency prior to, or within sixty days after, the meeting out of which the violation of this section arises, except that if public announcement of such meeting is not initially provided by the agency in accordance with the requirements of this section, such action may be instituted pursuant to this section at any time prior to sixty days after any public announcement of such meeting. Such actions may be brought in the district court of the United States for the district in which the agency meeting is held or in which the agency in question has its headquarters, or in the District Court for the District of Columbia. In such actions a defendant shall serve his answer within thirty days after the service of the complaint. The burden is on the defendant to sustain his action. In deciding such cases the court may examine in camera any portion of the transcript, electronic recording, or minutes of a meeting closed to the public, and may take such additional evidence as it deems necessary. The court, having due regard for orderly administration and the public interest, as well as the interests of the parties, may grant such equitable relief as it deems appropriate, including granting an injunction against future violations of this section or ordering the agency to make available to the public such portion of the transcript, recording, or minutes of a meeting as is not authorized to be withheld under subsection (c) of this section." Subsection (h) provides for judicial enforcement of the provisions of section 552b where agency actions, including failures to act, relating to a meeting are asserted to be in violation of the provisions of the section. Subsection (h) is not available for pre-enforcement review of an agency's Sunshine regulation; such an action must be brought under subsection (g). However, if a dispute over a particular act of alleged noncompliance, such as the use of improper GOVERNMENT IN THE SUNSHINE ACT procedure in closing a meeting, involves the validity of the agency regulation, this issue may be resolved in an action brought under subsection (h). Subsection (h)(1) provides for an independent suit in the U.S. District Court to enforce the Sunshine provisions; subsection (h) (2) provides for the raising of Sunshine Act violations in a proceeding for judicial review of an agency action taken under procedures which did not comply with the Act. Independent Enforcement Suits; Jurisdiction and Remedies Subsection (h) (1) confers jurisdiction on district courts to enforce the requirements of subsections (b) through (f) of the Act "by declaratory judgment, injunctive relief, or other relief as may be appropriate." As with suits under subsection (g), there is no standing requirement, but subsection (h)(1) does provide a 60-day statute of limitations. An action may be brought "by any person," "prior to, or within sixty days after the meeting out of which" the alleged violation of the Act arose. If proper public announcement of the meeting, however, was "not initially provided by the agency in accordance with the requirements" of the Act, the enforcement action may be brought within 60 days after the required announcement is made. "If an agency provides no public announcement at all, the 60-day requirement is inapplicable." S. Rept., 33. The report of the House Government Operations Committee adds that “[a]s in subsections (d) and (e), any public announcement must be made in a manner calculated to assure its wide dissemination in order to qualify as a 'public announcement' as that term is used herein." H. Rept. I, 16. The Sunshine Act does not require a plaintiff to exhaust his or her administrative remedies within the agency prior to bringing suit under subsection (h). The Conference Committee explicitly rejected a Senate provision requiring resort to administrative remedies. Conf. Rept., 22. However, the conferees stated that they "expect and encourage potential plaintiffs or their attorneys to communicate informally with the agency before bringing suit." Id. A number of agencies have promulgated administrative review procedures,1 but it remains an open question whether the courts will require resort to such agency procedures as a prerequisite to suit. A plaintiff may bring an action under subsection (h)(1) in the district court for the district "where the agency meeting was or is to be held, where the agency has its headquarters, or in the District of Columbia." Conf. Rept., 22. The Senate 1See pp. 76-78, supra. Only a few agency regulations, however, make any reference to the judicial review and enforcement provisions of subsections (g) and (h). See, e.g., regulations of the Civil Service Commission, 5 C.F.R. §295.601, 42 F.R. 13011; and the United States Postal Service, 39 C.F.R. §7.7, 42 F.R. 12864. GOVERNMENT IN THE SUNSHINE ACT Report notes, "It is important that actions brought under this subsection be handled expeditiously in order for public participation to be meaningful." S. Rept., 33. Thus, "[t]he defendant must serve his answer within 30 days after the service of the complaint, and the court is not given discretion *** to extend that time limit." Conf. Rept., 22. The burden of proof is on the agency to sustain its closing, withholding of information, or other challenged conduct. The Senate Report declares, "This is in accord with the presumption of openness established in the bill. Those who wish to operate in secrecy should have to justify it. Furthermore, in most cases the agency will be the only party in possession of information that might justify closing the meeting. The burden must therefore be on the agency to produce any facts that may support its action." S. Rept., 33. The reviewing court is authorized to examine in camera any portion of the transcript, recording, or minutes of a closed meeting, "and may take such additional evidence as it deems necessary." The Senate Report adds that "in appropriate cases, [the court] may also permit attorneys for all parties to examine the record of the meeting and argue the case in camera." S. Rept., 33. District courts acting under subsection (h) (1) are authorized only to correct Sunshine Act violations, the remedy, in effect, being generally more "Sunshine." Thus, they may grant "appropriate" equitable relief, including an injunction against future violations of the Act, a declaratory judgment that a certain practice or policy is unlawful, an order that the agency open a meeting it had planned to close or make available to the public such portion of the transcript, recording, or minutes of a meeting as is not authorized to be withheld under subsection (c) of the Act,2 or even an injunction against holding a meeting. 5 U.S.C. §552b(h)(1); H. Rept. I, 17; S. Rept., 33-34.3 However, as the second sentence of subsection 2"The power of the court to release the non-exempt portion of a transcript, recording, or transcription of an unlawfully closed meeting points up another reason for requiring such records to be made. Since a judicial determination that a meeting was unlawfully closed will in most instances come long after the meeting has been held, and since the substantive action taken at the meeting cannot be nullified when the court is acting solely under this subsection, the possibility of finding out what transpired at the meeting represents the only realistic remedy available to a plaintiff." H. Rept. I, 17. The Senate Report states that "normally it should not be necessary for a court to enjoin the holding of a meeting in order to correct violations of" the Act. "The court may do so, however, where, for GOVERNMENT IN THE SUNSHINE ACT (h) (2) makes clear, a Federal court proceeding under subsection (h)(1) is not authorized "to set aside, enjoin, or invalidate any agency action (other than an action to close a meeting or to withhold information under this section) taken or discussed at any agency meeting out of which the violation of this section arose." 5 U.S.C. §552b (h) (2). Such a remedy, to the extent it is available at all, is available exclusively in a proceeding under subsection (h)(2). Any relief the district court does decide to grant pursuant to subsection (h)(1) must comport with a standard of "due regard for orderly administration and the public interest, as well as the interests of the parties." 5 U.S.C. §552b(h)(1). Suits to Obtain Access to Transcripts. Subsection (h)(1) grants the district courts jurisdiction "to enforce the requirements of subsections (b) through (f)," which, read literally, would include suits to obtain access to transcripts, recordings, and minutes pursuant to subsection (f)(2). On the other hand, a suit under subsection (h)(1) must be brought within sixty days after the meeting in question, whereas an improper refusal to grant access may occur at any time. Consequently, a suit under the Freedom of Information Act, 5 U.S.C. §552(a)(4), seems to be the appropriate remedy in such a situation, and subsection (h)(1) should be regarded either as inapplicable to suits to obtain access to materials required to be made available by subsection (f)(2), or as an alternative remedy. To permit such suits to be brought under the Freedom of Information Act is consistent with section 552b(k), which defines the relationship between the FOIA and the Sunshine Act.5 example, the agency's violation is flagrant, or when the matter does not demand immediate action, and the public interest in the matter is great." S. Rept., 34. "The practical result is likely to be the same since the venue and attorney fees provisions of the FOIA are somewhat more favorable to plaintiffs than those of section 552b. However, a plaintiff under the FOIA must demonstrate that he has exhausted his administrative remedies, as exhaustion is defined in that Act, 5 U.S.C. §552(a)(6)(C); Open America v. Watergate Special Prosecution Force, 547 F.2d 605, 609-10 (D.C. Cir. 1976). If we are correct in our conclusion that requests for access to records of closed meetings are governed by the procedures of the FOIA, see pp. 99-101, infra, it would make sense to regard suit under the FOIA as the exclusive remedy for an improper refusal of access. However, in a suit brought under subs. (h)(1) for injunctive or declaratory relief with respect to an agency's action in closing a meeting, a court would clearly be authorized to require that the transcript be made available in addition to or in lieu of other relief. "See pp. 97-102, infra. GOVERNMENT IN THE SUNSHINE ACT "Reverse Sunshine" Cases. We have previously expressed the view that agency refusals to close meetings in response to requests made pursuant to subsection (d) (2) or otherwise are judicially reviewable. See p. 33, supra. What is less clear is whether an action to review such a refusal may be brought under subsection (h)(1). The alternative would be to permit a suit for so-called non-statutory review under the Administrative Procedure Act, 5 U.S.C. §701-706, with district court jurisdiction based on the existence of a federal question, 28 U.S.C. §1331.6 A similar problem has arisen under the Freedom of Information Act, where courts have held that the jurisdictional basis for "reverse FOIA" suits is not in the Act itself, but rather in 28 U.S.C. §1331. Planning Research Corp. v. Federal Power Commission, 555 F.2d 970, 977 (D.C. Cir. 1977). However, the judicial review provision of the FOIA, 5 U.S.C. §552(a)(4), applies by its terms only to complaints of agency records improperly withheld. The first sentence of subsection (h)(1) of the Sunshine Act, on the other hand, grants the district courts jurisdiction to enforce the requirements of subsections (b) through (f), which could be interpreted to include authority to review decisions to open meetings as well as decisions to close them. However, there are other provisions in subsection (h) which are inconsistent with the literal application of subsection (h)(1) to "reverse Sunshine" cases. First, the second sentence of subsection (h) (1) omits any requirement that the plaintiff be adversely affected by the agency decision. While Congress may have wished to eliminate obstacles based on lack of standing in suits to open meetings, it is very doubtful that Congress intended a similar result where the plaintiff sues to close a meeting. Second, the fifth sentence of subsection (h)(1) provides, "The burden is on the defendant [agency] to sustain his action." This, too, is The Administrative Procedure Act provides that "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof," 5 U.S.C. §702. In the absence of a special statutory review proceeding, review may be sought by "any applicable form of legal action, including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus, in a court of competent jurisdiction," 5 U.S.C. §703. Such review is usually referred to as non-statutory review. However, there has been a longstanding conflict of views as to whether the APA was itself a grant to the Federal district courts of jurisdiction over non-statutory review proceedings, a question the Supreme Court has recently answered in the negative. Califano v. Sanders, 430 U.S. 99 (1977). Consequently, the jurisdictional basis for non-statutory review proceedings must be found elsewhere, notably in 28 U.S.C. §1331. |