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consistent with a suit to open a meeting, but inconsistent with a suit to close a meeting because there is a statutory presumption in favor of open meetings. See p.13, supra; H. Rept. I, 17. Since reading subsection (h)(1) as inapplicable to "reverse Sunshine" suits would leave plaintiffs an adequate remedy under the APA and 28 U.S.C. §1331, there seems to be no need for a strained interpretation of subsection (h)(1) to accommodate such suits.

Judicial Review Proceedings

"(h) (2) Any Federal court otherwise authorized by law to review agency action may, at the application of any person properly participating in the proceeding pursuant to other applicable law, inquire into violations by the agency of the requirements of this section and afford such relief as it deems appropriate. Nothing in this section authorizes any Federal court having jurisdiction solely on the basis of paragraph (1) 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."

Subsection (h) (2) authorizes any Federal court "otherwise authorized by law" to review an agency action to "inquire into" Sunshine Act violations in the proceeding leading to such agency action. The Senate Report cites as an example that "a company challenging the validity of an agency rule may include in its challenge the fact that the agency adopted the rule in a meeting improperly closed to the public." S. Rept., 34. The court may be either the court of appeals or the district court, depending on the form of proceeding for judicial review of the agency action in question. See 5 U.S.C. §703.

Since subsection (h) (2) does not create an independent right of action, it may be invoked only by one who is "properly participating in the proceeding pursuant to other applicable law," i.e., by one who has standing to challenge the underlying agency action. Presumably, the "proceeding" referred to is the judicial review proceeding. Whether participation in the agency proceeding is necessary for participation in the judicial review proceeding depends on the law governing review of the action in question. See, e.g., Gage v. United States Atomic Energy Commission, 479 F.2d 1214, 1217-19 (D.C. Cir. 1973). The Senate Report also notes, "If the action an agency took at a closed meeting was not otherwise reviewable by the court, [subsection (h) (2)] would not make that action, or the agency's compliance with this subsection reviewable." S. Rept., 34.

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Of course, the limitations of time which apply to acting under subsection (h)(1) are inapplicable under subsection (h)(2), H. Rept. I, 17. Less clear is whether subsection (h) (2) is available at an intermediate stage of the agency proceeding. Subsection (h) (2) contemplates raising Sunshine violations only within a judicial review proceeding otherwise properly brought, so that if there is not yet a final agency action to review, resort to subsection (h)(2) would ordinarily be premature under the doctrine of exhaustion of administrative remedies. Cf. Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 24 (1974); Bristol-Myers Co. v. FTC, 469 F.2d 1116 (2d Cir. 1972). Of course, a party to an agency proceeding who feels his interests threatened by Sunshine Act violations would also be able to invoke subsection (h)(1).

The court acting under subsection (h) (2) is authorized to inquire into Sunshine violations and "afford such relief as it deems appropriate." Presumably, this includes the full range of remedies available under subsection (h)(1), and, in addition, it may include the setting aside of the agency action under review. Indeed, the unique feature of subsection (h) (2) is the possibility it offers for attacking the underlying agency action. Yet, Congress evidently granted this authority with some reluctance:

"The conferees do not intend the authority granted to the Federal courts by the first sentence of subsection (h) (2) to be employed to set aside agency action taken other than under section 552b solely because of a violation of section 552b in any case where the violation is unintentional and not prejudicial to the rights of any person participating in the review proceeding. Agency action should not be set aside for a violation of section 552b unless that violation is of a serious nature." Conf. Rept., 23. Similarly, the Senate Report states, "It is expected that a court will reverse an agency action solely on [the ground that it was taken at an improperly closed meeting] only in rare instances where the agency's violation is intentional and repeated, and the public interest clearly lies in reversing the agency action." S. Rept., 34. See also H. Rept. I, 17.

The efficacy of any relief under subsection (h)(2) is questionable. Since the improper closure of a meeting is unlikely to have had any demonstrable effect on the decision itself, a remand to the agency to consider the matter again at an open meeting would probably accomplish little. To require the agency to go through the entire proceeding again would be a needless burden on all concerned. Perhaps where a case is

"See comments of Federal Communications Commission, House Government Operations Hearings, 392.

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otherwise close on the merits a court might regard Sunshine violations as the "tipping factor" justifying a remand, but it seems doubtful that a court should do so unless there is some reason to believe that additional proceedings before the agency might lead to a different result.8

Use of the Transcript for Judicial Review. In proceedings under subsection (h) (2) the court will, of course, have access to the transcript or recording of the closed meeting. A question not squarely addressed by the Act is whether the court may consider that transcript, or a transcript or recording of an open meeting, for any purpose other than to determine whether there has been compliance with the Sunshine Act. In other words, is the transcript part of the administrative record? Prior to the Sunshine Act, there would have been no question that the deliberations of the agency members, even if known or accessible, would not be appropriate for consideration on judicial review:

"It is not the function of the court to probe the mental processes' of administrative officers, Morgan v. United States, 304 U.S. 1, 18, 58 S.Ct. 999, 82 L.Ed. 1129 (1938). A strong presumption of regularity supports the inference that when administrative officials purport to decide weighty issues within their domain they have conscientiously considered the issues and adverted to the views of their colleagues. Agencies are no more bound to enter for the record the time, place, and content of their deliberations than are courts." Braniff Airways, Inc. v. CAB, 379 F.2d 453, 460 (D.C. Cir. 1967).

A major reason for the courts' declining to probe the mental processes of officers is the practical difficulty of doing so. This difficulty would largely disappear where the transcripts and recordings are available.

Cf. Justice Fortas' plurality opinion in NLRB v. Wyman-Gordon Co., 394 U.S. 759, 767 n. 6 (1969): “To remand would be an idle and useless formality. ** There is not the slightest uncertainty as to the outcome of a proceeding before the Board, whether the Board acted through a rule or an order.*

"Of course, transcripts or recordings are required only where the meeting is closed, but some agencies are maintaining transcripts or recordings of open meetings as well. See, e.g., regulations of the U.S. International Trade Commission, 19 C.F.R. §201.40(c), 42 F.R. 11245. Indeed, in view of the difficulty of preventing tape recording by members of the public (even where the agency seeks to do so, see pp. 14-15, supra), the agencies may be forced to make their own transcripts or recordings as protection against an inaccurate record in the possession of others.

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It might be argued that such probing would be all to the good, that the courts should not defer to legal presumptions of agency expertise and impartiality where the facts are at hand to demonstrate otherwise. It might even be argued that such a broadening of the scope of judicial review would exert some pressure toward raising the quality of the decisionmaking process and, at the least, enable the courts to overturn some bad decisions which would survive review under present standards.

Against these advantages, however, must be weighed the impact on the administrative process and on the judicial review process of a procedure in which the lawyers comb the record of the meeting for evidence that a member acted arbitrarily, that he misunderstood an argument or misstated a fact in the record, that he cast his vote to please the chairman and not out of conviction, and so on. The dangers arising from this kind of inquiry and this multiplication of issues surely outweigh the advantages of permitting the meeting transcript to become part of the record on review.

There is some legislative history indicating that Congress did not intend such a result. Thus, when a Department of Justice witness suggested that a transcript containing discussion between agency members and staff might become part of the administrative record for judicial review, Rep. Abzug stated:

"That is an interesting question. We have not regarded that as additional history which would enable a court to expand its review of the ultimate rulemaking and the decisionmaking by the agency."10

Perhaps more significant is that the strongest proponents of the transcript requirement appear to have viewed it exclusively as a means of making available to the public information which is not exempt under subsection (c) and of obtaining judicial review of unlawful closings.11 There is no indication in the legislative history of an intent that transcripts of closed meetings or evidence of deliberations at open meetings should become part of the administrative record of a proceeding.

A few agencies have attempted to deal with this problem in their rules. The Civil Aeronautics Board, for example, provides that the transcripts and minutes required by the

10 House Government Operations Hearings, 197. A warning against using transcripts for expanded judicial review was voiced by the Association of the Bar of the City of New York, id., at 221, 245. 11See, e.g., remarks of Rep. Abzug, 122 Cong. Rec. H7891 (daily ed. July 28, 1976).

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Sunshine Act will be kept for Sunshine purposes only and "do not constitute the official record of Board action. The official record of the Board continues to be the Minutes *** maintained by the Office of the Secretary."12 The Securities and Exchange Commission, meanwhile, noted in the explanatory statement preceding its rule:

"Similarly, the Commission also stresses that the expanded right to observe Commission meetings (and the possibility of obtaining transcripts or recordings of discussion at closed meetings) should not be viewed as creating new grounds for challenging the basis and rationale for Commission action. Observations made by individual members of the Commission during the course of deliberations may not necessarily reflect the reasoning underlying the Commission's final action on a given matter. Thus, the legal sufficiency of Commission action must, as in the past, be judged solely on the basis of the action itself and any official supporting statement released by the Commission-not on the basis of remarks or observations made prior thereto." 42 F.R. 14692.

1214 C.F.R. §310b.10(e), 42 F.R. 14680, 14683. The CAB regulation also addresses the closely analogous problem of whether parties to agency proceedings may file responses to matters discussed at open meetings:

"The right of the public to observe open discussions at Board meetings shall not include a right to participate at the meeting, or the right to file motions, pleadings, or other documents based on the comments of Board Members or staff at open discussions. The open meeting procedure is not an appropriate vehicle for persons to supplement records in matters before the Board. Such motions, pleadings or documents shall not be accepted by the Board." 14 C.F.R. §310b.9(c), 42 F.R. 14682.