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GOVERNMENT IN THE SUNSHINE ACT

Foreword

The Guide should be helpful to the agencies, and useful to the Congress, the courts, and members of the interested public.

I would hope that the Conference can continue to play a role as experience develops under the Act and the implementing regulations.

March 1978

ROBERT A. ANTHONY
Chairman

Administrative Conference of the
United States

This Interpretive Guide to the Government in the Sunshine Act is an attempt to present a comprehensive, though not exhaustive, examination of the principal questions which have arisen or appear likely to arise under the open meeting provisions of the Act. It has developed out of the consultations which this Office carried on from October, 1976 until March, 1977, pursuant to the mandate of the Act, with the agencies issuing open meeting regulations. Our consultative activities included conducting a series of informal meetings attended by representatives of a majority of the covered agencies, circulating draft agency regulations and other materials provided by participating agencies, responding to telephone inquiries, commenting on proposed regulations, and, generally, serving as a clearinghouse for advice and information on the Act.

We concluded from our experience consulting with the agencies that it would be helpful to put into some coherent and lasting form the substance of the research, thought and exchange of ideas which took place in this process. As we were writing, our conception of the project grew, and we decided to include materials drawn from the published legislative history as well as from the proposed and final agency regulations. The result is a compendium of material, drawn from various sources, but all relevant, we believe, to the resolution of the legal and practical problems posed by the Act.

This Guide does not purport to be official or definitive. On many questions there is room for difference of opinion, and we have, in general, set forth our own views, supported by such reasoning and cited authority as seemed to us persuasive. We have also drawn heavily on and cited the agencies' own regulations and explanatory statements, which are, under established principles, entitled to respect as the "contemporaneous construction of a statute by the men [and women] charged with the responsibility of setting its machinery in motion," Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 315 (1933). Finally, we have occasionally attempted to point to examples of what we consider to be the "better" agency practices in dealing with particular procedural problems.

The Guide covers only the open meeting provisions of the Government in the Sunshine Act, specifically, section 552b of Title 5, U.S. Code, as added by section 3 of the Act. No attention is given to section 4, which deals with ex parte communications in formal agency proceedings, or to the conforming amendments in section 5. Furthermore, within sec

GOVERNMENT IN THE SUNSHINE ACT

tion 552b our discussion is limited to subsections (a) (i) and (k), the remaining subsections being largely self-explanatory.

The organization of the Guide follows the structure of the statute, a copy of which appears at Appendix A. Each chapter of the Guide is headed by a subsection of section 552b and relates that subsection to both its relevant legislative history and sample agency regulations implementing it. We have also set forth a table of contents in sufficient detail to function as an index.

The Guide was distributed in a tentative version early in May, 1977, and comments were sought from the affected agencies and other interested persons and groups. We are sincerely grateful for the many constructive comments, criticisms and suggestions which we received. We have made a number of revisions in the text in response to these comments. In this rapidly developing area of the law, however, it has not been possible to update the Guide to reflect subsequent agency experience under the Sunshine Act or subsequent changes in agency regulations, and, with some exceptions, this Guide describes the regulations and practices in effect as of May 1, 1977.

The Guide is intended primarily to reflect the consultative work on the Act carried out by this Office and to serve as an informal guide to the agencies, as they continue to adjust their procedures and practices to comply with the open meeting requirements of the statute. We hope it will be helpful to the agencies, as well as to the judiciary, to Congress, and to members of the public. Since the Guide does discuss different agency approaches to the procedural obligations imposed by the Act, it should be of some use in any analysis and subsequent amendment of the current requirements.

Finally, we wish to make some acknowledgments. We are grateful for the assistance and cooperation we have received from the agencies and their Sunshine Act representatives, the "Sunshine Boys and Girls." Without their queries, comments, and collective thinking, this Guide would not have been possible. We also wish to thank Sharon Ressler for her creative work on the design and production of the book, Joseph Azar for his valuable help on the cover, Laura Sheppeard for her excellent editorial assistance, and the secretarial staff of this Office, particularly, Loretta Williams, Margaret Jackson, and Betty Palmer.

November, 1977

RICHARD K. BERG
Executive Secretary

STEPHEN H. KLITZMAN
Staff Attorney

Citations, and Selected
Bibliography

Legislative History

Senate

The legislation which was to become the "Government in the Sunshine Act," see Appendix A, was first introduced in the 92d Congress on August 4, 1972 by Senator Lawton Chiles of Florida as S.3881. 118 Cong. Rec. 26902-19. No action was taken on the bill, and Senator Chiles reintroduced the bill in the 93d Congress on January 9, 1973 as S.260. 119 Cong. Rec. 646-651.

The bill was referred to the Subcommittee on Reorganization, Research and International Organizations of the Senate Government Operations Committee, where it underwent several revisions. In 1974 the Subcommittee held three days of hearings on Committee Print No. 3, Hearings on S.260 before the Subcommittee on Reorganization, Research and International Organizations of the Senate Committee on Government Operations, 93d Cong., 2d Sess., May 21 and 22, October 15, 1974.

Subsequent to the October, 1974 hearing, the Subcommittee prepared Committee Print No. 4 of S.260, which was introduced by Senator Chiles on January 15, 1975 in the 94th Congress as S.5.121 Cong. Rec. 241-246.

On July 31, 1975, without further hearings, the Committee on Government Operations reported S.5 with amendments. S. Rept. No. 94-354, 94th Cong., 1st Sess. (1975). As reported, the bill consisted of two titles, Title I, meetings of congressional committees, and Title II, agency meetings and ex parte communications.

Title I was referred to the Senate Committee on Rules and Administration which on September 18, 1975 reported out S.5 and recommended that Title I be deleted from the bill. S. Rept. No. 94-381, 94th Cong., 1st Sess. (1975).

On November 5, 1975, Title I was deleted on the floor of the Senate. 121 Cong. Rec. 35218. On November 6, 1975 S.5 as amended was considered and passed without significant further amendment by a vote of 94-0. 121 Cong. Rec. 3532136.

GOVERNMENT IN THE SUNSHINE ACT

House

History

A bill identical to Title II of S.5, as reported by the Senate Committee on Government Operations, was introduced in the House of Representatives by Representative Dante Fascell of Florida on September 26, 1975, as H.R.9868. 121 Cong. Rec. H9211 (daily ed.).

On October 22, 1975, Representative Bella Abzug of New York introduced H.R.10315, an amended version of Title II of S.5. 121 Cong. Rec. H10242 (daily ed.).

The House versions were referred sequentially to the Committees on Government Operations and the Judiciary.

On November 6 and 12, 1975, the House Government Operations Subcommittee on Government Information and Individual Rights held hearings on H.R.10315 and H.R.9868. Hearings on H.R.10315 and H.R.9868 before a Subcommittee of the House Committee on Government Operations, 94th Cong., 1st Sess. (1975).

On February 3, 1976, a clean bill was introduced in the House by Representatives Abzug, Fascell, and others as H.R.11656. 122 Cong. Rec. H670 (daily ed.).

On March 8, 1976, the House Government Operations Committee reported H.R.11656. H. Rept. No. 94-880, pt. I, 94th Cong., 2d Sess. (1976).

On March 24-25, 1976, the House Judiciary Subcommittee on Administrative Law and Governmental Relations held hearings on H.R.11656. Hearings on H.R.11656 before the Subcommittee on Administrative Law and Governmental Relations of the House Committee on the Judiciary, 94th Cong., 2d Sess. (1976).

On April 8, 1976, the House Judiciary Committee reported H.R.11656 with amendments. H. Rept. No. 94-880, pt. II, 94th Cong., 2d Sess. (1976).

On July 28, 1976, the House considered and passed H.R.11656, with floor amendments, and then took up S.5 and amended it to substitute the text of the House bill. S.5 was then passed by a vote of 390-5 and sent to a Senate-House Conference. 122 Cong. Rec. H7863-902 (daily ed.).

Conference Committee and Enactment

On August 26 and 27, 1976, the report of the Conference Committee was filed respectively in the House and Senate. H. Rept. No. 94-1441; S. Rept. No. 94-1178, 94th Cong., 2d Sess. (1976).

On August 31, 1976, the report was adopted by voice vote in the Senate. 122 Cong. Rec. 15043-45 (daily ed.), and by a vote of 384-0 in the House. 122 Cong. Rec. H9258- 62 (daily ed.).

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