5 USC 552. 44 USC 3301. 5 USC 552a. 5 USC prec. 500. Pub. Law 94-409 - 6 September 13, 1976 meetings open to the public, the total number of meetings closed to the public, the reasons for closing such meetings, and a description of any litigation brought against the agency under this section, including any costs assessed against the agency in such litigation (whether or not paid by the agency). "(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. “(1) This section does not constitute authority to withhold any information from Congress, and does not authorize the closing of any agency meeting or portion thereof required by any other provision of law to be open. "(m) Nothing in this section authorizes any agency to withhold from any individual any record, including transcripts, recordings, or minutes required by this section, which is otherwise accessible to such individual under section 552a of this title.". (b) The chapter analysis of chapter 5 of title 5, United States Code, is amended by inserting: "552b. Open meetings." immediately below: "552a. Records about individuals.". EX PARTE COMMUNICATIONS SEC. 4. (a) Section 557 of title 5, United States Code, is amended by adding at the end thereof the following new subsection: "(d) (1) In any agency proceeding which is subject to subsection (a) of this section, except to the extent required for the disposition of ex parte matters as authorized by law "(A) no interested person outside the agency shall make or knowingly cause to be made to any member of the body compris ing the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of the proceeding, an ex parte communication relevant to the merits of the proceeding; "(B) no member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of the proceeding, shall make or knowingly cause to be made to any interested person outside the agency an ex parte communication relevant to the merits of the proceeding; "(C) a member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of such proceeding who receives, or who makes or knowingly causes to be 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 90 STAT. 1246 September 13, 1976 - 7 Pub. Law 94-409 "(iii) all written responses, and memoranda stating the substance of all oral responses, to the materials described 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 subsection, 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, denied, disregarded, or otherwise adversely affected on account of such violation; and "(E) the prohibitions of this subsection shall apply beginning Applicability. at such time as the agency may designate, but in no case shall they begin to apply later than the time at which a proceeding is noticed for hearing unless the person responsible for the communication has knowledge that it will be noticed, in which case the prohibitions shall apply beginning at the time of his acquisition of such knowledge. "(2) This subsection does not constitute authority to withhold information from Congress.". (b) Section 551 of title 5, United States Code, is amended— (1) by striking out "and" at the end of paragraph (12); (2) by striking out the "act." at the end of paragraph (13) and inserting in lieu thereof "act; and"; and (3) by adding at the end thereof the following new paragraph: "(14) ex parte communication' means an oral or written com- "Ex parte munication not on the public record with respect to which reason- communicaable prior notice to all parties is not given, but it shall not include tion." requests for status reports on any matter or proceeding covered by this subchapter.". (c) Section 556(d) of title 5, United States Code, is amended by inserting between the third and fourth sentences thereof the following new sentence: "The 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 suffi- 5 USC 557. cient grounds for a decision adverse to a party who has knowingly committed such violation or knowingly caused such violation to occur.". CONFORMING AMENDMENTS SEC. 5. (a) Section 410(b)(1) of title 39, United States Code, is amended by inserting after "Section 552 (public information),” the words "section 552a (records about individuals), section 552b (open meetings).". (b) Section 552(b) (3) of title 5, United States Code, is amended to read as follows: "(3) specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld;”. (c) Subsection (d) of section 10 of the Federal Advisory Committee Act is amended by striking out the first sentence and inserting in lieu 5 USC app. I. thereof the following: “Subsections (a)(1) and (a)(3) of this section shall not apply to any portion of an advisory committee meeting where 90 STAT. 1247 5 USC 552b note. Pub. Law 94-409 - 8 September 13, 1976 the President, or the head of the agency to which the advisory com- EFFECTIVE DATE SEC. 6. (a) Except as provided in subsection (b) of this section, the provisions of this Act shall take effect 180 days after the date of its enactment. (b) Subsection (g) of section 552b of title 5, United States Code, as added by section 3 (a) of this Act, shall take effect upon enactment. Approved September 13, 1976. LEGISLATIVE HISTORY: HOUSE REPORTS: No. 94- 880, Pt. I and No. 94-880, Pt. 2, accompanying SENATE REPORTS: No. 94-354 (Comm. on Government Operations), No. 94- CONGRESSIONAL RECORD: Vol. 121 (1975): Nov. 5, 6, considered and passed Senate. Aug. 31, House and Senate agreed to conference report. Vol. 12, No. 38 (1976): Sept. 13, Presidential statement. 90 STAT. 1248 September 13, 1976 - 7 Pub. Law 94-409 "(iii) all written responses, and memoranda stating the substance of all oral responses, to the materials described 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 subsection, 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, denied, disregarded, or otherwise adversely affected on account of such violation; and "(E) the prohibitions of this subsection shall apply beginning Applicability. at such time as the agency may designate, but in no case shall they begin to apply later than the time at which a proceeding is noticed for hearing unless the person responsible for the communication has knowledge that it will be noticed, in which case the prohibitions shall apply beginning at the time of his acquisition of such knowledge. "(2) This subsection does not constitute authority to withhold information from Congress.". (b) Section 551 of title 5, United States Code, is amended— (1) by striking out "and" at the end of paragraph (12); (2) by striking out the "act." at the end of paragraph (13) and inserting in lieu thereof "act; and"; and (3) by adding at the end thereof the following new paragraph: "(14) 'ex parte communication' means 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 shall not include requests for status reports on any matter or proceeding covered by this subchapter.". "Ex parte communica tion." (c) Section 556(d) of title 5, United States Code, is amended by inserting between the third and fourth sentences thereof the following new sentence: "The 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 suffi- 5 USC 557. cient grounds for a decision adverse to a party who has knowingly committed such violation or knowingly caused such violation to occur.". CONFORMING AMENDMENTS SEC. 5. (a) Section 410(b) (1) of title 39, United States Code, is amended by inserting after “Section 552 (public information),” the words "section 552a (records about individuals), section 552b (open meetings).". (b) Section 552 (b) (3) of title 5, United States Code, is amended to read as follows: "(3) specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld;". (c) Subsection (d) of section 10 of the Federal Advisory Committee Act is amended by striking out the first sentence and inserting in lieu 5 USC app. I. thereof the following: "Subsections (a) (1) and (a)(3) of this section shall not apply to any portion of an advisory committee meeting where 90 STAT. 1247 5 USC 552b note. Pub. Law 94-409 - 8 September 13, 1976 the President, or the head of the agency to which the advisory com- EFFECTIVE DATE SEC. 6. (a) Except as provided in subsection (b) of this section, the provisions of this Act shall take effect 180 days after the date of its enactment. (b) Subsection (g) of section 552b of title 5, United States Code, as added by section 3(a) of this Act, shall take effect upon enactment. Approved September 13, 1976. LEGISLATIVE HISTORY: HOUSE REPORTS: No. 94- 880, Pt. I and No. 94-880, Pt. 2, accompanying SENATE REPORTS: No. 94-354 (Comm. on Government Operations), No. 94- CONGRESSIONAL RECORD: Vol. 121 (1975): Nov. 5, 6, considered and passed Senate. Aug. 31, House and Senate agreed to conference report. Vol. 12, No. 38 (1976): Sept. 13, Presidential statement. 90 STAT. 1248 |