made, a communication prohibited by this
subsection shall place on the public
record of the proceeding:

(i) all such written communications:
(ii) memoranda stating the substance
of all such oral communications; and
(iii) all written responses, and
memoranda stating the sustance of all
oral responses, to the materials de-
scribed in clauses (i) and (ii) of
this subparagraph:

(D) upon receipt of a communication
knowingly made or knowingly caused to be
made by a party in violation of this sub-
section, the agency, administrative law
judge, or other employee presiding at the
hearing may, to the extent consistent with
the interests of justice and the policy of
the underlying statutes, require the party
to show cause why his claim or interest in
the proceeding should not be dismissed, de-
nied, disregarded, or otherwise adversely
affected on account of such violation; and

In addition, the term "ex parte communication" was defined to mean

"an oral or written communication not on the public record with respect

to which reasonable prior notice to all parties is not given, but it

ing covered by this subchapter.

51/

shall not include requests for status reports on any matter or proceedAnd the Sunshine Act further provided that "[t]he agency may, to the extent consistent with the interests of justice and the policy of the underlying statutes administered by the

agency, consider a violation of section 557(d) of this title sufficient grounds for a decision adverse to a party who has knowingly committed 52/ such violation or knowingly caused such violation to occur.

In short, the Sunshine Act prohibited communication both to and from agency decisionmakers covered by the Administrative Procedure Act in connection with certain pending hearing proceedings, except where such communications are on the record of the proceeding. The language, when read literally, appears to apply as an absolute prohibition, in that "no interested person outside the agency" could make ex parte communications. The legislative history of the Sunshine Act provides support for the view that "interested persons" should be read to include governmental officials, including members of Congress.

In its initial report on H.R. 11656, the House Committee on Government Operations made the following explanatory comments about the provision relating to ex parte communications in the House bill:

The purpose of the provisions of the bill prohibiting ex parte communications is to insure that agency decisions required to be made on a public record are not influenced by private, off-the-record communications from those personally interested in the outcome. 53/

51/ 5 U.S. Code Section 551(4).

52/ 5 U.S. Code Section 556(d).

53/ House Report No. 94-880 (Part I), 94th Cong., 1st Sess. (1976), at p. 2.

At page 4, the House Report provides this summary of the ex parte

communications provisions:

Ex Parte Communications

Section 4 of the bill would enact a general prohibition on ex parte communications between agency decisionmaking personnel, including commissioners and administrative law judges, and outside persons having an interest in the outcome of a pending proceeding. These provisions would apply to executive agencies without regard to whether they are headed by a collegial body or a single individual.

The communications prohibited by the ex parte section would include only those relative to the merits of the proceeding. Thus, an inquiry of an agency clerk as to the procedural status of an adjudication or rulemaking matter would not be unlawful under the bill. A violation of the prohibition could result in sanctions up to and including loss of the proceeding on the merits (as under existing case law). See, e.g., Jacksonville Broadcasting Corp. v. FCC, 348 F.2d 75 (D.C. Cir.), cert. denied, 382 U.S. 893 (1965).

Later in the report, the comments made in the section-by-section analysis of the bill indicated the breadth of intended inclusion through

the use of the term "interested person":

The term "interested persons" is intended
to be a wide, inclusive term covering any indi-
vidual or other person with an interest in the
agency proceeding that is greater than the gen-
eral interest the public as a whole may have.
The interest need not be monetary, nor need a
person to be a party to, or intervenor in, the
agency proceeding to come under this section.
The term includes, but is not limited to,
parties, competitors, public officials, and
non-profit or public interest in the matter
regulated. The term does not include a mem-
ber of the public at large who makes a casual
or general expression of opinion about a pend-
ing proceeding.
54/

[Emphasis added]

54/ Id., at 19.

Thus the Report could conclude, as it did, that the prohibition. "While the prohibitions on ex parte

applies to Members of Congress.

communications relative to the merits apply to communications from Mem

bers of Congress, they are not intended to prohibit routine inquiries or 55/

referrals on constituent correspondence.

Much the same analysis was made of the provision by the House Judiciary Committee, to which the bill was jointly referred. In Part II, of House Report No. 94-880, prepared by the House Judiciary Committee a similar summary begins at page 17.

The legislative history of the ex parte communication prohibitions in the Sunshine Act clearly indicates that Members of Congress were intended to be included within the term "interested persons" and would thereby be subject to the prohibition against ex parte communications with the covered agencies. Thus, the application of the prohibition to the legislative branch of the government was clearly intended. Contacts by "public officials," in the words of the two House reports, were as equally forbidden as contacts by those with financial or other

interests.

In the setting of a congressional hearing, the discussion of covered pending proceedings by either the decisionmaker from an agency or by congressional members or personnel would appear to constitute forbidden ex parte communications.

It must be recalled that the purpose of the Sunshine Act was to require decisions of government to be made in the open. Thus, even

though the prohibition against ex parte communications might be generally

55/ Id., at 21.

applicable to a wide category of public officials, those officials are not prevented from expressing their views on matters pending before subject agencies. On the contrary, most Federal agencies have liberal policies relating to intervention or participation in proceedings which would be subject to the ex parte rule. The Sunshine Act, however, imposes the burden of making communications on the record of the agency proceeding, so that all participants have access and knowledge of the nature of the communications made to agency decisionmakers.

The Sunshine Act prohibition against ex parte communications is directed at rulemaking on the record, that is, rulemaking involving formal hearings, and adjudicatory hearings. It does not appear that it was intended to apply to informal rule-making, the notice and comment procedure used under 5 U.S.C. Code Section 553 for the vast majority of agency decision-making. However, judicial decisions, notably Home Box Office, Inc. v. FCC, and Action for Children's Television 57/ v. FCC, appear to apply ex parte prohibitions in informal rule-making.

56/

However, more recent cases have refused to extend ex parte prohibitions to informal rulemaking beyond the specific requirements of 58/ 59/ agency rules. In Hercules, Inc. v. EPA, for example, the court held that incidental contacts within the agency between its judicial officer and the rulemaking staff for the purpose of providing good faith assistance regarding the record of a bulky and complex administrative record were permissible.

56/ 567 F.2d 9 (D.C. Cir. 1977).

57/ 564 F.2d 458 (D.C. Cir. 1977).

58/ See, Association of National Advertiser, supra; and Sierra Club v. Costle, supra.

59/ 598 F.2d 91 (D.C. Cir. 1978).