Assessment of Costs

“(i) The court may assess against any party reasonable attorney fees and other litigation costs reasonably incurred by any other party who substantially prevails in any action brought in accordance with the provisions of subsection (g) or (h) of this section, except that costs may be assessed against the plaintiff only where the court finds that the suit was initiated by the plaintiff primarily for frivolous or dilatory purposes. In the case of assessment of costs against an agency, the costs may be assessed by the court against the United States."

The provisions of subsection (i) are largely self-explanatory. Both the Freedom of Information Act, 5 U.S.C. §552(a)(4)(E), and the Privacy Act, 5 U.S.C. §552a(g)(2)(B), 3(B), contain provisions for the assessment of reasonable attorney fees and other litigation costs against the United States where the plaintiff has substantially prevailed. The Sunshine Act provides also for an assessment of costs against the plaintiff but "only where the court finds that the suit was initiated * * * primarily for frivolous or dilatory purposes."1

Both the Senate-passed bill and the bill reported by the House Government Operations Committee contained a provision for assessing costs against individual agency members who "intentionally and repeatedly" violate the open meeting requirements, but this provision was stricken by the House Judiciary Committee "because it was concluded that it is not desirable or even possible to assess costs against individual members for actions taken by a collegial body ***," H. Rept. II, 7. The Judiciary Committee position was sustained by the House and in Conference. Conf. Rept., 23.2

"The "costs" which may be assessed against the plaintiff include reasonable attorney fees. There is no reason to believe that the term "costs" in the "except" clause is used in contradistinction to attorney fees. See S. Rept., 34- 35; H. Rept. I, 18. Such costs could be awarded to the United States, but under Government accounting practices would not accrue to the benefit of the particular agency. 31 U.S.C. §484.

"It might be argued that costs might nevertheless be assessed against the agency members if they are named as individual

GOVERNMENT IN THE SUNSHINE ACT

"Reverse Sunshine" Cases. We have previously concluded that subsection (h)(1) is not applicable to a suit to require an agency to close a meeting. It would follow that subsection (i) is not applicable either.3

defendants. However, subs. (h)(1) provides for suit against the agency in its own name and not for suit against its members. See 5 U.S.C. §703; H. Rept. No. 94-1656, 94th Cong., 2d Sess., 18; 1976 U.S. Code Cong. & Ad. News 6138.

3See pp. 89-90, supra.

Relationship to Freedom of Information Act

"(k) Nothing herein expands or limits the present rights of any person under section 552 of this title, except that the exemptions set forth in subsection (c) of this section shall govern in the case of any request made pursuant to section 552 to copy or inspect the transcripts, recordings, or minutes described in subsection (f) of this section. The requirements of chapter 33 of title 44, United States Code, shall not apply to the transcripts, recordings, and minutes described in subsection (f) of this section."

Subsection (k) provides that "nothing herein2 expands or limits the present rights of any person" under the Freedom of Information Act, except that the agency authority to withhold material in the transcripts, recordings or minutes of closed meetings will be governed by the Sunshine Act exemptions rather than by the exemptions in the FOIA. Hence, nothing in the open meeting provisions is intended to increase or decrease the public's access to documents or other records under the FOIA.3 "Access to the actual documents or other written matter discussed or referred to at a meeting subject to [section 552b] will continue to be governed, as before, by the Freedom of Information Act." S. Rept., 39.

Confidentiality of Internal Memoranda. The status of interor intra-agency memoranda, such as staff recommendations, which are considered at open agency meetings remains a controversial question. Such memoranda are exempt from

1We omit discussion of subsections (j), (1), and (m), which appear to us self-explanatory.

2"Herein," of course, refers to the open meeting provisions, section 552b, and not to the entire Government in the Sunshine Act. Section 5(b) of the Act does alter rights under the FOIA by narrowing the third exemption. See pp. 19-20, supra.

The requirement in the last sentence of subsection (f)(1) that agency minutes of a closed meeting must identify "all documents considered in connection with any action" may facilitate FOIA requests but does not by itself expand any rights under the FOIA. *This question was at issue in the first, and, as of January, 1978, only law suit to be brought under the Government in the Sunshine Act. See Consumers Union of the United States, Inc. v. Board of Governors of

GOVERNMENT IN THE SUNSHINE ACT

disclosure as documents under the fifth exemption of the FOIA, 5 U.S.C. §552(b)(5). However, since there is no Sunshine exemption comparable to §552(b)(5), meetings may not be closed in order to protect the confidentiality of internal memoranda, and if the meeting is closed on other grounds, the agency may not withhold from the public that portion of the transcript which includes discussion of internal memoranda unless the discussion falls within one of the Sunshine Act exemptions. Of course, if preservation of the confidentiality of the memorandum, or aspects of it (such as the identity of the author), is important to the agency, the participants in the meeting can no doubt contrive to refer to it obliquely, even though to do so may make it difficult for observers of the meeting to follow the course of the discussion. There is an unavoidable tension between FOIA exemption (5), which recognizes a legitimate governmental interest in protecting the agency deliberative process as such, see Environmental Protection Agency v. Mink, 410 U.S. 73, 86-90 (1973), and the Sunshine Act, which aims at maximum exposure of that process, at least at the collegial level.5 However, a common sense approach by the agency can in most cases achieve a satisfactory resolution of the conflict.

The Federal Trade Commission has addressed this problem. Responding to a public comment calling for making staff memoranda available to the public observing a meeting, the Commission declined to provide for routine duplication of

the Federal Reserve System, (D.D.C., Civil Action #77-1800). Consumers Union sought to compel the Board to make available a document to be discussed in an open meeting. Consumers Union argued that without the document, it was difficult to understand what was being discussed at the meeting, and that therefore, the discussion was not meaningfully open to the public. The Board denied that its discussion of the document was incomprehensible.

The case was dismissed on agreement of both parties. On January 18, 1978, the Federal Reserve Board clarified its policy governing release of documents discussed at open meetings. See 43 F.R. 2444. Under the clarified procedures, any person requesting access to a Board document to be discussed at an open meeting must file a written request with the Board's Freedom of Information Office at least two working days prior to the meeting. The Board will then give such a request "priority treatment" and will make the document available by the time of the meeting, "unless there is insufficient opportunity to process the request or a determination is made to invoke an applicable exemption from disclosure." Id.

It should be recalled, however, that the drafters of the Sunshine Act recognized that the considerations favoring exposure to public scrutiny of the deliberations of agency heads do not necessarily apply to the deliberative process at the staff level, S. Rept., 17. See p. 3, supra.

GOVERNMENT IN THE SUNSHINE ACT

all memoranda to the Commission "both because of cost and of certain remaining requirements of confidentiality," but the Commission has undertaken "to make available before open meetings summaries of matters on the agenda in order to facilitate the public's understanding of open discussions," 42 F.R. 13539.6

Where the agency's concern is simply to preserve in confidence the identity of the authors of staff memoranda in the interest of encouraging candid expression by staff members, it may be feasible to release the memoranda with the names or other identifying material deleted. See Tax Reform Research Group v. IRS, 419 F. Supp. 415, 423-24 (D.D.C. 1976).

Applicability of FOIA Procedures to Requests for Access to Transcripts. Another question raised by the interaction of subsection (f) (2) and subsection (k) is whether agency procedures for handling subsection (f) (2) requests are governed by the FOIA, the Sunshine Act, or both. The principal difference between the two statutes is that the FOIA, 5 U.S.C. §552(a)(6), prescribes time limits-ten working days for an initial determination, twenty working days for disposition of an administrative appeal-for agency handling of requests, whereas the Sunshine Act does not. In addition, the FOIA, §552(a)(4)(A), provides that agencies shall furnish documents "without charge or at a reduced charge where the agency determines that waiver or reduction of the fee is in the public interest because furnishing the information can be considered as primarily benefiting the general public." The Sunshine Act contains no such provision, although the legislative history indicates that such waivers are encouraged. S. Rept., 32. See also pp. 78-79, supra.

The agencies are divided over whether to follow FOIA procedures. Some agencies will consider requests for transcripts, recordings, or minutes under FOIA procedures and time limits, some under Sunshine Act procedures, with or

See text and notes at pp. 15-16, supra.

"The FOIA limits serve to define the requester's duty to exhaust administrative remedies, whereas the Sunshine Act contains no exhaustion requirement. See note 4 at p. 88, supra. Therefore, it is not at all clear that an agency may obtain more time to process requests by adopting Sunshine Act procedures distinct from its FOIA procedures.

See, e.g., regulations of the Export-Import Bank of the United States, 12 C.F.R. §407.7, 42 F.R. 12419; Federal Communications Commission, 47 C.F.R. §0.607(b), 42 F.R. 12869; and U.S. Postal Service, 39 C.F.R. §7.8, 42 F.R. 12864. See also amendment of regulations of the National Science Foundation, 45 C.F.R. §614.4, 42 F.R. 55619.