202 of the bill follows closely the wording developed by the American Bar Association.

In 1884 Woodrow Wilson stated:

Light is the only thing that can sweeten our political atmosphere-light thrown upon every detail of administration in the departments-light blazed full upon every feature of legislation-light that can penetrate every recess or corner in which any intrigue might hide; light that will open to view the innermost chambers of Government.

The committee fully agrees.

HISTORY OF LEGISLATION

The legislation was initially introduced as S. 3881 on August 9, 1972, by Senator Lawton Chiles.

While there was informal consideration of the bill during the 92d Congress, no legislative action was taken. As a consequence of these discussions, a more developed and comprehensive proposal was drafted and offered by Senator Chiles in the 93d Congress. Introduced on January 9, 1973, with several cosponsors, the measure (S. 260) contained two titles, one pertaining to congressional committee proceedings and one governing executive branch agency meetings. A new section regarding ex parte communications was added to the latter title.

In the summer of 1973, the Subcommittee on Reorganization, Research, and International Organizations, chaired by Senator Ribicoff, solicited the views of public administration experts, legal scholars, representatives of the media, and professional organizations. (See Government in the Sunshine: Responses to Subcommittee Questionnaire, Senate Government Operations Committee Print 1973). An overwhelming majority of the responses to the questionnaire strongly supported Government in the Sunshine legislation.

Two days of hearings on S. 260 were held by the subcommittee on May 21 and 22, 1974, under the direction of Senator Chiles. An additional day of hearings was held on October 15.

The bill was reintroduced by Senator Chiles as S. 5 on January 15,

1975.

On May 12, the Subcommittee on Federal Spending Practices, Efficiency, and Open Government, meeting in open session, unanimously adopted an amended version of S. 5. The full committee met in open session on June 18 and July 9, and the bill, as further amended, was ordered reported by the full committee on July 9th by a unanimous

vote.

In preparing this legislation the committee has consulted with a large number of legal experts both within the government and the private sector. It received comments on the legislation from 43 agencies of the government.

During its consideration of S. 5 the committee made a large number of amendments to the bill in response to suggestions by members of Federal agencies, Congress and the public. These amendments further insure that the Government will be able to open their activities to the

public without imposing unnecessary procedural burdens on the Government, or interfering with the Government's effectiveness. The following is a summary of some of the more important amendments adopted by the committee.

Sections 101 through 103 have been revised to conform in most respects to S. Res. 9 and S. Res. 12 and the provision in the Congressional Budget Act of 1974, Public Law 93-344, enacted by Congress in 1974. A number of the procedural requirements contained in the original bill were eliminated.

Section 201 was amended in a number of way. The scope of section 201 (a) was limited so that is applies only to those multiheaded agencies headed by Officials appointed by the President with the advice and consent of the Senate. The definition of "meeting" was redrafted to exclude many discussions which are informal in nature. Subsection (b) was amended to provide agencies with additional flexibility to close meetings where necessary. A number of paragraphs were added specifying additional grounds justifying a closed meeting, and the scope of other paragraphs, such as the one governing adjudication, was broadened. Another amendment provides that an agency may withhold information about a meeting for the same reasons that may require the agency to close the meeting in the first place. Other wording added to subsection (b) clarifies the right of an agency to close a meeting where it determines that the meeting can be reasonably expected to involve sensitive matters. Absolute certainty is not required on the part of the agency. The section is not intended to require such a showing of certainty in any judicial proceeding invoking this section. Amendments to subsection (c), (d) and (e) relieve agencies of a number of the procedural requirements contained in the original bill. One amendment to subsection (c) authorizes agencies in certain cases to issue general regulations specifying in advance the meetings that must be closed. Another amendment gives agencies the right to change on short notice the agenda of their meetings, or to revise their prior decisions to open or close meetings. The public announcement an agency must make of its meetings was expanded to include notice in the Federal Register either before or after the meetings is held.

Instead of requiring an agency to maintain a transcript or electronic recording of all its meetings, subsection (e) was amended to require a verbatim record of only those meetings closed to the public. Meetings discussing cases in adjudication were exempted from the requirement of a verbatim record in all cases. Other changes provide that agencies will not have to edit the transcripts in great detail, nor provide written explanations of any deletions it makes in the transcripts released to the public.

Other amendments to section 201 prevent district courts from overturning agency action taken at a meeting improperly closed to the public, and strictly limit the ability of a court to assess the costs of litigation against an individual agency member.

The wording in section 202 governing ex parte contacts was changed in several ways. One amendment limits the authority of an agency to rule on the merits against a party committing an ex parte violation. As now worded, an agency may rule against such a party only where the violation was knowing. Similarly, wording was added making a

communication by one person, on behalf of another, ex parte only where it was done with the knowledge of the other person. Another amendment deletes a provision in the original bill that exempted ex parte communications from certain types of persons who were neither parties, intervenors, nor Government officials. The provision granting the district court jurisdiction to enforce the requirements of the section was deleted.

Finally, provisions were added to section 203 clarifying the relationship between this bill and the Freedom of Information Act and the Privacy Act.

SECTION-BY-SECTION ANALYSIS

INTRODUCTORY SECTIONS

Section 1. This section states that the bill may be cited as the "Government in the Sunshine Act."

Section 2. This section establishes as the policy of the United States the principle that the public should have the fullest practicable knowledge about the decisionmaking process of the Government. It is the purpose of the bill to implement this policy without infringing upon the rights of individual citizens and the ability of the Government to carry out its responsibilities. The provision thus reaffirms the principle that openness is desirable in a democratic Government. It is the intent of this bill that governmental bodies conduct their deliberations in public to the greatest extent possible. At the same time, the section explicitly recognizes that the bill must also protect the ability of the Government to carry out its responsibilities, and protect the rights of individuals, such as the right of privacy, or the right to a fair and impartial trial. The bill's provisions have been drafted in full recognition of the fact that Government, if it is truly to serve the public, must not only be open, but also effective and fair.

Section 3. This section defines "person" in the same way as the Administrative Procedure Act, and should be interpreted in the same way as that act. The definition includes an individual, but excludes an agency.

TITLE I-CONGRESSIONAL PROCEDURES

SECTION 101-SENATE COMMITTEES

Section 101 (a). Paragraph (1) strikes the portion of section 133 (b) of the Legislative Reorganization Act now governing executive sessions of Senate committees. The present rule provides that markups and other voting sessions of the committee will be closed unless the committee votes to open them in specific instances, or unless the committee votes to adopt on its own a general open meeting rule.

Paragraph (2) amends the Legislative Reorganization Act to provide new rules governing all meetings of a Senate committee or subcommittee discussing committee business, with the exception of hearings. The section establishes a presumption in favor of openness of all Senate committee meetings in accordance with the general policy of the bill. Openness should be the rule and secrecy the exception. The new rule requires that all committee meetings, other than hearings, shall be open unless a majority of the members of the committee or

subcommittee present decide by record vote to close the meeting, or a portion of the meeting, on one of five specified grounds.

These five grounds are designed to cover those instances when it may be necessary for a committee to meet in closed session. Even if a matter does come within one of these five provisions, the committee must decide in each particular case whether the need for secrecy outweighs the general need for openness in Government. Since this judgment must be made in each case, with full recognition of all the facts, the rule requires the committee to vote on each meeting separately. The committee may not adopt general rules closing certain types of meetings. If a committee discussion of a particular matter is extended over several days, the committee should vote at the beginning of each day's meeting whether to close the meeting. Where only a portion of a committee meeting needs to be closed to the public, the committee should arrange for the remainder to be open.

The five grounds which a committee may invoke to close a meeting are listed in clauses (1) through (5) of the new rule.

Section 101 (a) (1) exempts matters necessary to be kept secret in the interests of national defense or the foreign policy of the United States.

This exemption is similar to that in the Freedom of Information Act, as amended (5 U.S.C. 552 (b) (1)). The meaning that the terms "national defense" and "foreign policy" have under that act should provide guidance to Congress in implementing this provision. However, since the section applies to the Congress, not the executive branch, the exemption does not expressly rely on the status any material may have under executive branch rules of classification.

Section 101 (a) (2) exempts matters relating solely to committee staff personnel or internal staff management or procedure. The provision recognizes that discussions involving such matters as the hiring of a particular individual to serve on the staff of the committee should be be closed so as to enable a candid discussion of the individual's qualifications.

Section 101 (a) (3) exempts matters which will tend to charge an individual with crime or misconduct; injure the professional reputation of any individual, or expose any individual to public contempt or obloquy; or represent a clearly unwarranted invasion of an individual's privacy.

Any committee must be aware of the effect publicity arising from one of its meetings may have on an individual's reputation. Special care must be taken not to unfairly injure an individual's reputation by unconfirmed or misleading statements. However, the language of the exemption should not be read as justifying the closing of every committee meeting that may in some way affect an individual's reputation. Such restrictiveness would not be in accord with the intent of either the bill or this clause. In each case, the committee will have to balance the possible harm to the individual against the need for openness in Government. The possibility that one member of the committee might make a casual remark concerning some individual might not constitute grounds for closing a meeting, whereas formal consideration of committee action in some way censuring an individual might justify closing the meeting.

In deciding whether to close a particular meeting, different standards should apply to private individuals and public officials. The public has a right to know fully about the actions of Government officials

in their public capacity. What is considered an invasion of privacy of a private citizen may be justified when the official conduct of a public employee is involved.

Section 101 (a) (4) exempts discussions that would disclose the identity of an informer or law enforcement agent, or that would disclose information relating to the investigation or prosecution of any civil or criminal violation of law that must be kept confidential in the interests of effective law enforcement.

It is expected that this provision will be applicable primarily to meetings concerning such aspects of a committee investigation as the issuance of a subpena. Premature disclosure of the committee's decision to issue the subpena could destroy its effectiveness.

Section 101 (a) (5) exempts matters disclosing trade secrets or commercial or financial information where such matter is required to be kept secret by a statute, or where the information was obtained on a confidential basis and disclosure would cause undue injury to a person's competitive position.

Trade secrets and commercial or financial information must meet the same tests under this exemption. The information can not be generally applicable to an industry, but must "pertain specifically to a given person." The information discussed at the meeting must directly involve such sensitive matters, not merely be peripherally related to them.

The criteria established in clause 5(A) is applicable only to statutes which specifically requiring trade secrets or commercial or financial information to be kept confidential. General statutes which permit government officials to withhold information in the public interest do not meet this test. For example, it does not include the general type of statute involved in Administrator, FAA v. Robertson, 95 S. Ct. 2140 (1975).

Clause 5(B) establishes an alternative basis for closing meetings under this provision. Two criteria must be met. First, the government must have obtained the information under a pledge of confidentiality. Secondly, the information must be kept confidential in order to prevent undue injury to the competitive position of the person to whom the information specifically relates. In deciding whether the competitive injury would be "undue," the committee will have to balance the legitimate public interest in attending the meeting against the degree to which disclosure would substantially and unfairly injure a person's business interests.

Section 101(b). This subsection is a conforming amendment repealing the present provision in the Standing Rules of the Senate governing the meetings, other than hearings, of all standing committees.

Section 101 (c). This subsection amends the table of contents of the Legislative Reorganization Act of 1946 to include a reference to the new provision governing Senate committees enacted by section 101 (a) of the bill.

SECTION 102-HOUSE COMMITTEES

This section amends the rules of the House of Representatives now governing all meetings, other than hearings, by adopting exactly the same rules as section 101 (a) adopts for the Senate. The present rules of the House provide that all such meetings, except those involving internal committee budgets or personnel matters, will be open unless