cisionmaking process, including commissioners. Currently only hearings examiners are covered. It broadens the type of agency proceedings covered so as to include not only formal adjudications, but also formal rulemaking proceedings governed by the same rules as formal adjudications. It specifies that the prohibition against ex parte communications shall start at an early point in the proceedings. It applies to all communications "relevant to the merits of the proceedings." It precisely spells out for the first time the corrective steps that an agency official must take if an ex parte communication does take place. And it specifically provides for sanctions that an agency may impose against any person violating the rules on ex parte communica

tions.

BACKGROUND AND PURPOSE OF THE LEGISLATION

This bill represents the logical extension of legislation passed by Congress over the last decade designed to open the government's decisionmaking process to the public.

In 1955 the House of Representatives created a Special Subcommittee on Government Information chaired by Rep. John E. Moss (D.-Calif.). The investigative and legislative hearings held by that panel contributed significantly to the creation and enactment in 1966 of the Freedom of Information Act, 5 U.S.C. 552. In 1972, while major oversight hearings were underway regarding the administration and operation of the Freedom of Information Act, in particular, and government information policy in general, another attempt to open the people's business to public view culminated in the enactment of the Federal Advisory Committee Act, 5 U.S.C. App. I. In addition to its other provisions, this statute establishes the presumption that the meetings of advisory committees and study panels should be open to the public.

In 1974 the Congress enacted new legislation amending and strengthening the public's right to gain access under the Freedom of Information Act to information in the government's possession.

This bill is fully in accord with the principles and aims of the previous legislation.

One important effect of the bill will be to increase the public's confidence in government. Mr. Lou Harris, a leading pollster, summed up the current public mood during committee hearings on the Government in the Sunshine legislation as follows:

At this point in our history, the people are roundly fed up with what they feel is incompetence, inefficiency, corruption, lack of real public interest, and just plain lack of decency in the governing circle of this country. I do not say that idly, Mr. Chairman. Most of all, people are firmly wedded to the notion that if the Federal Government were opened up, rather than gross inefficiencies and lack of candor resulting, to the contrary, an opening of the Federal decisionmaking process would indeed lead to wiser, sounder, more creative and better decisions. (Hearings on S. 260, 1974, p. 163.)

The committee is confident that the public will be favorably impressed by the integrity, competence, and dedication of the great majority of agency heads. Open meetings will thus help increase the

public's confidence in government by permitting the public to observe firsthand the responsible way agency heads carry out their duties.

On the other hand, where the government is not functioning as well as it could public exposure should help insure that the quality of work remains at the highest possible level. The committee believes that it would be far less damaging to government if the facts, regardless of their nature, were disclosed openly to the public and the press, rather than emerging only indirectly through speculation or scandal.

Press speculation or partial leaks of information are often more damaging than the actual facts. (See, e.g., Hearings on S. 260, 1974, pp. 16, 217, 295.) Where the press must rely on leaks for its information there will inevitably be inaccuracies as well as partisan or selfserving statements.

As John Gardner, Chairman of Common Cause, said when testifying in strong support of S. 5:

Secrecy is fatal to accountability. Citizens cannot hold government officials accountable-if they do not know what government officials are doing. All of the great instruments of accountability that the citizen must depend on-Congress, the courts, the electoral process, the press-may be rendered impotent if the information crucial to their functions is withheld. (Hearings on S. 260, 1974, p. 51.)

The public is naturally more distrustful of government conducted in secret. This suspicion arises in large part from the fact that meetings are closed, not from any specific evidence that improper or illegal activities are taking place behind closed doors. Regardless of what the public actually learns about the government, the fact that this bill opens meetings formerly closed should in itself remove an important source of any distrust the public may have of government.

In addition, this bill should enhance greatly the public's understanding of the decisions reached by the government. The Freedom of Information Act enables the public to review many of the domuments on which government decisions are based. These represent a record of what has already transpired. Yet up to now the public has not had a full opportunity to learn how or why government official make the important policy decisions which they do. All too often the meetings at which such decisions are made are closed to the public. Interested persons must content themselves with elementary minutes, or background papers tangentially related to the official agenda. Formal statements in support of agency actions are frequently too brief, or too general, to fully explain the Commission's reasoning, or the compromises that were made. As a result, the public may not understand the reasons an agency has acted in a certain way, or even what exactly it has decided to do. By requiring important decisions to be made openly, this bill will create better public understanding of agency decisions.

The committee believes that this openness will significantly increase cooperation between the public and government agencies. It will enhance the public's comprehension of the difficult choices agencies must often make. and provide a greater appreciation of the problems they face. Moreover, openness will better demonstrate what facts and policy considerations the agency found important in reaching its decision, and what alternatives it considered and rejected. As citizens listen to debate

between the heads of an agency, they will be able to identify precisely the issues that are of most concern to the agency.

Greater public understanding of the exact nature and reason for agency decisions should also promote greater compliance. Members of the public directly affected by an agency's action will no longer have to guess what exactly is expected of them as a result of a particular decision. They will know not only what the agency decided, but the purpose and intent of the agency's actions.

Finally, as all elements of the public gain an equal opportunity to learn about the issues and problems confronting agencies, wider and more informed public debate of the agency's policies becomes possible. Increased public interest and discussion cannot help but contribute to improve decisionmaking process.

One of the leading scholars on administrative law, Professor Kenneth Culp Davis of the University of Chicago Law School, summarized his strong support of the Government in the Sunshine legislation as follows:

Open meetings would at first cause consternation and opposition. But gradually open meetings would be accepted. Making more of the realities known to the public would facilitate criticism, and the principal result would be to improve the quality of what is done. Furthermore, the democratic influence would be stronger. The relation between agencies on one side and media and pressure groups of the other side would be improved, because misunderstanding resulting from partial information, as distinguished from full information, would be reduced. (See Government in the Sunshine: Responses to Subcommittee Questionnaire, Government Operations Committee Print, 1973, p. 67.)

The success Congress and the committee have recently had in opening its activities to the public confirms the effectiveness and practicality of S. 5.

In the first year after the House in 1973 adopted a rule requiring committees to hold their bill-drafting meetings in public, unless the committee voted to close the meeting, 80 percent of all mark-ups were open to the public. Previously, every committee but one conducted its mark-ups in private (Hearings on S. 260, 1974, p. 47). In 1974, the number of open committee mark-ups in the House increased to 88 percent. In 1975 the House confirmed the success of such open government legislation by re-enacting its rule on open committee meetings. At the same time it strengthened one of its provisions.

This committee believes that its own experience with open mark-ups has clearly been a success. Since the committee adopted a rule requiring open mark-ups, it has not voted to close a single one. Conducting mark-ups in public has not interfered with the orderly and efficient conduct of business.

The Senate Committee on Banking, Housing and Urban Affairs, and the Committee on Interior and Insular Affairs have had similar rules since 1973. These committees also conclude without hesitation that the open-meeting rule has neither interfered with their work, nor inhibited free and open discussions. (Hearings, pp. 92-94, p. 104.)

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Over the last 2 years the Government Operations Committee, the Banking, Housing, and Urban Affairs Committee, and the Interior Committee have dealt effectively in open sessions with such important and often controversial legislation as the Congressional Budget and Impoundment Control Act of 1973, the Energy Reorganization Act of 1973, the Housing and Community Development Act of 1974, the Export-Import Bank, and legislation concerning energy allocation, land use policy, consumer protection, and surface mining and mineral leasing.

Open meeting laws are also a widely accepted and successful part of State law. Forty-nine States now have open meetings laws, and thirty-five States have constitutional provisions relating to open government.

State laws on open government have developed largely since 1950, when only one law was in effect. In the last few years especially, such legislation has gained wide acceptance at the State level. Nine new laws were passed during 1972-73. In 1974, ten States strengthened existing legislation. Moreover, no open meeting law has been repealed except to be strengthened. Several States have also recently amended their constitutions to add more comprehensive provisions on open government.

Forty-nine States open state-level agencies. Forty-four States provide for open meetings of county and city level nonlegislative agencies, as well as city councils and county boards. Currently, State legislatures in 35 States open committee deliberations to the public. In contrast, only 17 States opened committee meetings to the public as a matter of course in 1972. The appendix to this report contains a summary of the open meeting laws in all 50 States.

The State of Florida has the most comprehensive open meetings law in the country. The Florida law opens to the public all discussions and deliberations of government where "official acts are to be taken." Since its passage in 1967, Florida's "Sunshine Law" has been well received by the judiciary. The courts have neither significantly limited the broad scope of the law, nor riddled it with exceptions. Indeed, the judicial acceptance of this strong open government law has fostered the development of similar laws in other States.

Governor Reubin Askew of Florida, testifying on the Florida law before the committee, stated that "... Predictions that too much sunshine would lead to unnecessary embarrassment of public employees, costlier land acquisitions, and other problems have not been borne out by the Florida experience." A major study of the Florida law by the Center for Governmental Responsibility polled city councilmen across the State and found that 77 percent favored the law, though several exemptions, similar to those in S. 5, were proposed.

The committee received views in support of open meeting laws from the Attorney General's Office in a number of other States as well. The Attorney General of California told the committee that open meeting requirements have generally had a "salubrious effect" in that State. The Attorney General of Washington believes the law in that State "has been beneficial to the citizens" of the State and "has led to increasing awareness by those deliberative bodies affected by it for the need to adequately prepare themselves for meetings." The Attorney General

of North Carolina concludes that the State's open meetings bill "has substantially improved the governmental process," and that it has "helped increase public confidence in government."

The all but universal trend at the State level in favor of Government in the Sunshine legislation is clear evidence that such legislation is both practical and beneficial. Such widespread adoption of the legislation would not have occurred had the States found them unsuccessful or unworkable. One recent commentary on such State laws in fact concluded that "contemporary arguments by commentators in opposition to such laws are virtually nonexistent." (45 Mississippi Law Journal 1151, 1162.)

In short, this committee is convinced that past experience with open meeting legislation constitutes strong grounds for believing that the Federal Government will benefit significantly from general legislation requiring meetings in both the executive and legislative branches to be open.

Section 202, prohibiting ex parte contacts, answers a similar need to insure openness in the way the Government decides formal adjudication and rulemaking proceedings.

Ex parte contacts made secretly between one party to the proceeding and an agency official prevent other interested parties from countering the arguments presented. It may also make it impossible for the public to understand why an agency decided the case as it did. Such contacts make it difficult for Congress to exercise effective oversight of the practices and policies of regulatory agencies. In short, ex parte contacts are totally inconsistent with the principle of open government.

Although the undesirability of ex parte contacts has long been recognized, the Administrative Procedure Act contains no general provision specifically prohibiting them. Section 202 amends the Administrative Procedure Act to clarify and reemphasive the extreme seriousness with which ex parte contacts should be viewed. It provides clear notice to all concerned that ex parte contacts are not only illegal, but may actually result in the agency finding on the merits against a party who knowingly violates the provision.

The need for regulation of ex parte contacts in adjudicative proceedings was first dramatized by the exposure of improper influence in the granting of broadcast licenses by Federal agencies in the 1950's. The 1961-62 Administrative Conference attempted to deal with the problem by recommending that each agency promulgate a code of behavior governing ex parte contacts. While a number of the agencies did formulate such rules, they vary greatly in the types of contacts covered. Furthermore, rules adopted by an agency may be modified or repealed by the same agency at any time. Such rules lack the authority and permanence of a general statutory prohibition of ex parte

contacts.

In 1963 Administrative Law Section of the American Bar Association undertook a study of the Administrative Procedure Act, including a review of its ex parte provisions. In 1970 the House of Delegates of the American Bar Association endorsed enactment of a broad rule prohibiting ex parte contacts. Between 1970 and 1974 an Association committee drafted language implementing this resolution. Section