CONTENTS Page Debate on adoption of S. 5 (Congressional Record, v. 121, November 5, Text of S. 5 as reported to Senate by Government Operations Com- Debate on adoption of S. 5 (Congressional Record, v. 121, November 6, Text of H.R. 11656, as reported by Government Operations Com- mittee, March 8, 1976, and as reported by the Judiciary Committee, (VII) CONFERENCE ACTION Senate appoints conferees (Congressional Record, v. 122, July 29, 1976, House appoints conferees (Congressional Record, v. 122, August 3, 1976, 727 727 Conference Committee Print—comparison of House and Senate versions. 729 773 783 House adopts conference report (Congressional Record, v. 122, August 31, 1976, H9258-H9262) 813 Senate adopts conference report (Congressional Record, v. 122, August 31, 1976, S15043-S15045)_. 823 EXECUTIVE ACTION The President's remarks and statement upon signing S. 5 into law, September 13, 1976 (Presidentia! Documents: Gerald Ford, 1976, vol. 12, number 38, pp. 1333-1334). 831 THE LEGISLATIVE HISTORY OF THE GOVERNMENT IN THE SUNSHINE ACT-S. 5 (PUBLIC LAW 94-409) The first sunshine proposal (S. 3881) was introduced by Senator Lawton Chiles (D.-Fla.) on August 4, 1972, and referred to the Senate Committee on Government Operations. A companion bill (H.R. 16450) was offered in the House of Representatives by Representative Dante Fascell (D.-Fla.) on August 17. Patterned after the philosophy behind the Freedom of Information Act (5 U.S.C. 552), the bills provided that "all meetings (including meetings to conduct hearings) of any government agency at which any official action is considered or discussed shall be open to the public" and then set forth four categories of exception: national security matters, internal management questions, situations with a potential for adverse effect upon an individual's character or reputation, or subjects required to be kept confidential under specific statutory authority. The open meetings provisions also extended to congressional committee proceedings. Transcripts of open meeting deliberations were required and judicial remedy was established in the event a dispute arose over the propriety and/or legality of closing a meeting. Neither House took action on the measures in the 92d Congress. With the opening of the 93d Congress, the measure was again introduced in the House (H.R. 4) by Representative Fascell on January 3, 1973. A modified and expanded version of the original proposal was offered (S. 260) by Senator Chiles and 17 bi-partisan co-sponsors on January 9. A version of the enlarged bill was subsequently introduced (H.R. 10000) in the House by Representative Fascell on August 3, and it eventually gained almost 50 co-sponsors from both political parties. Expansion of the original measure included the addition of a policy definition of "national security" as utilized in the bill; more detailed procedure regarding opening and closing meetings of both congressional committees and Executive Branch multimember administrative agencies; inclusion of certain types of law enforcement information, trade secrets, and financial or commercial information as subjects. exempt from mandatory disclosure in open meetings; and a new provision prohibiting ex parte communications between agency decisionmakers and all persons outside the agency where the purpose of the contact is to discuss the merits of any matter being formally adjudicated by the agency, any rulemaking proceeding or any proceeding to prepare an environmental impact statement. Referred to the Senate Committee on Government Operations, the Sunshine bill was assigned to the Subcommittee on Reorganization, Research, and International Organizations, chaired by Senator Abraham Ribicoff (D.-Conn.), for consideration. In July 1974, the subcommittee sent a questionnaire to a variety of experts-attorneys, public administrators, political scientists, public interest policy organiza 1 See Congressional Record, v. 118, August 4. 1972 $12794-S12811. 2 See Ibid., v. 119, January 9, 1973: S373-S377. tions, State officials, editors and journalists-soliciting their views on the bill. These responses were compiled in December and published for use in considering the Sunshine proposal.3 During the early stages of the 2d session of the 93d Congress, the Reorganization Subcommittee, with Senator Chiles as acting Chairman, received testimony on the bill from a number of witnesses. Public officials testifying at that time included Senator Charles Percy (R.-Ill.), Senator William Roth (R.-Del.), Senator Dick Clark (D.-Iowa), Representative Bill Gunter (D.-Fla.), Representative Dante Fascell (D.-Fla.), and Governor Reubin Askew of Florida. Others appearing during the spring hearings included Charles S. Rowe, Bill Mullen, and Theodore S. Serrill, representing the National Newspaper Association; John Gardner and David Cohen, appearing on behalf of Common Cause; pollster Lou Harris; Ron Plesser, a staff attorney with Ralph Nader's Center for the Study of Responsive Law; and Jeanne Malchon, former State president of the League of Women Voters of Florida. On October 15, the subcommittee heard from agency officials representing the particular views of such agencies as the Interstate Commerce Commission, Civil Aeronautics Board, Securities and Exchange Commission, and Federal Communications Commission. Other witnesses included representatives from the Administrative Conference of the United States, spokesmen from the Radio-TV News Directors Association, Douglas Q. Wickham, Professor of law at the University of Tennessee Law School, and John B. Adams, Dean of the University of North Carolina Journalism School.* In the 94th Congress the legislation was introduced by Senator Chiles with two dozen bi-partisan co-sponsors on January 15, 1975. The bill (S. 5) was first referred to the Subcommittee on Federal Spending Practices, Efficiency and Open Government of the Committee on Government Operations, and subsequently reported by that subcommittee on May 12. The bill was reported (S. Rept. 94-354) by the full committee with amendments by a unanimous vote on July 9.5 Certain procedural requirements contained in the original bill regarding the closing of meetings were modified. In addition, the scope of the bill was modified to cover only those multiheaded agencies headed by officials appointed by the President with the advice and consent of the Senate. Amendments were added specifying additional grounds justifying a closed meeting. Rather than requiring an agency to maintain a transcript of electronic recording of all its meetings, the bill was amended to require a verbatim transcript only of those meetings closed to the public. Meetings discussing cases in adjudication were exempted from the transcript requirements in all instances. Other amendments pertained to preventing district courts from overturning substantive agency action taken at a meeting improperly closed to the public. and an ex parte provision limited to apply only to formal on-therecord agency proceedings. See U.S. Congress. Senate. Committee on Government Operations. Government in the Sunshine Responses to Subcommittee Questionnaire. Committee print, 93d Congress, 1st sess. Washington, U.S. Govt. Print. Off.. 1974. 128 pp. See U.S. Congress. Senate. Committee on Government Operations. Government in the Sunshine. Hearings, 93d Congress, 2d session. May 21 and 22; and October 15, 1974. Washington, U.S. Govt. Print. Off.. 1974. 397 p. U.S. Congress. Senate. Committee on Government Operations. Government in the Sunshine. Washington, U.S. Govt. Print. Off., 1975. 62 p. (94th Congress, 1st session. Senate. Report No. 94-354) [infra, p. 193]. |