not directly relate to specific agency adjudication involving a member of that industry, or to formal rulemaking involving the industry as a whole. It is not the intent of this provision to cut an agency off from access to general information about an industry that an agency needs to exercise its regulatory responsibilities. So long as the communication containing such data does not directly discuss the merits of a pending adjudication it is not prohibited by this section. A request for a status report or a background discussion about an industry may in effect amount to an indirect or subtle effort to influence the substantive outcome of the proceedings. The judgment will have to be made whether a particular communication could affect the agency's decision on the merits. In doubtful cases the agency official should treat the communication as ex parte so as to protect the integrity of the decisionmaking process. Paragraph (2) is the inverse of paragraph (1). It prohibits agency officials who are or who may be involved in the decisional process from engaging in an ex parte contact with an interested person. It embodies the same standards as paragraph (1). Paragraph (3) states that if an ex parte communication is made or received by an agency official, he must place on the proceeding's public record: (A), any illegal written communication, (B), a memorandum stating the substance of any illegal oral communication, and (C), any oral or written statements made in response to the original ex parte communication. The "public record" of the proceeding means the public docket or equivalent file containing all the materials relevant to the case readily available to the parties and the public generally. Material may be part of the public record even though it has not been admitted into evidence. The purpose of this provision is to notify the opposing party and the public, as well as all decisionmakers, of the improper contact and give all interested persons a chance to reply to anything contained in the illegal communication. In this way the secret nature of the contact is effectively eliminated. Agency officials who make an ex parte contact are under the same obligation to record it publicly as when an agency official receives such a communication. In some cases, merely placing the ex parte communication on the public record will not, in fact, provide sufficient notice to all the parties. Each agency should consider requiring by regulation that in certain cases actual notice of the ex parte communication be provided all parties. Paragraph (4) states that the officer presiding over the agency hearings in the proceedings may require a party who makes a prohibited ex parte communication to show cause why his claim or interest in the proceeding should not be dismissed, denied, disregarded or otherwise adversely affected because of the violation. This provision accompanies section 202(d), which authorizes an agency to consider a violation of this section as grounds for ruling against a party on the merits. Paragraph (4) insures that the record of the proceeding contains adequate information about the violation. The presiding officer need not require a party committing an ex parte contact to show cause in every instance why the agency should not rule against him. The matter rests within his discretion. As in the case of subsection (d), the presiding officer should require such a showing only if consistent with the interests of justice and the policy of the underlying statutes. Thus a showing should be required where, among other factors, there is a reasonable likelihood that the illegal contact will be shown to have been made knowingly, but not where the violation was clearly inadvertent. Paragraph (5) requires that the prohibitions against ex parte communications apply as soon as a proceeding is noticed for a hearing. However, if a person initiating a communication before that time is aware that notice of the hearings will be issued, the prohibitions would apply from the time the person gained such awareness. An agency, it wishes, may require that the provisions of this section apply at any point in the proceedings prior to issuance of the notice of hearings. Section 202(b). This subsection is only a conforming amendment. It deletes from the Administrative Procedure Act the limited provision in section 554 (d) now governing ex parte communications. This part of the present law is no longer necessary upon adoption of section 202(a). Section 202(c). This subsection adds a definition of "ex parte communication" to the definitions contained in the Administrative Procedure Act. The term includes an "oral or written communication not on the public record with respect to which reasonable prior notice to all parties is not given." A communication is not ex parte if either, (1) the person making it placed it on the public record at the same time it was made, or (2) all parties to the proceeding had reasonable advance notice. If a communication falls into either one of these two categories, it is not ex parte. Where advance notice is given, it should be adequate to permit other parties to prepare a possible response and to be present when the communication is made. As in subsection (a), "public record" means the docket or other public file containing all the material relevant to the proceedings. It includes, but is not limited to, the transcript of the proceedings, material that has been accepted as evidence in the proceeding, and the public file of related matters not accepted as evidence in the proceeding. An individual who writes a letter concerning the merits of the proceeding to a commissioner, and who places a copy of the letter at the same time in the transcript of the proceedings, would not have made an ex parte communication. However, a party who wrote the same letter and sent it only to a commissioner, would have committed a violation of the section even if the commissioner subsequently placed the letter in the public record. Section 202(d). This subsection amends section 556(d) of title 5, so as to authorize an agency to render a decision adverse to a party violating the prohibition against ex parte communications. It is intended that this provision apply to both formal parties, and to intervenors whose interests are equivalent to those of a party. This possible sanction supplements an agency's authority to censure or dismiss an official who engages in an illegal ex parte communication, or to prohibit an attorney who violates the section from practicing before the agency. Such an adverse decision must be "consistent with the interests of justice and the policy of the underlying statutes." For 80-459 O-77-16 example, the interests of justice might dictate that a claimant for an old age benefit not lose his claim even if he violates the ex parte rules. On the other hand, where two parties have applied for a license and the applications are of relatively equal merit, an agency may rule against a party who approached an agency head in an ex parte manner in an effort to win approval of his license. The subsection specifies that an agency may rule against a party for making an ex parte communication only when the party made the illegal contact knowingly. An inadvertent ex parte contact must still be remedied by placing it on the public record. If the agency believes that such an unintentional ex parte contact has irrevocably tainted the proceeding, it may require the parties to make a new record. However, the committee concluded that an agency should not definitively rule against a party simply because of an inadvertent violation. It is expected that an agency will rule against a party under this subsection only in rare instances. However, the committee felt it very important that an agency have this option available where the circumstances justify it, and where the agency must emphasize the seriousness with which it views violations of the ex parte rules. SECTION 203-EFFECT ON OTHER LAWS Section 203 (a). This subsection provides that nothing in section 201 increases or decreases the public's access to documents or other records under the Freedom of Information Act, 5 U.S.C. section 552. Access to the actual documents or other written matter discussed or referred to at a meeting subject to section 201 will continue to be governed, as before, by the Freedom of Information Act. The availability of transcripts or electronic recordings required by section 201 (e) are exempted from this general rule. Section 201(e) imposes a separate responsibility on an agency to keep verbatim records and to make them available to the public on its own initiative unless they concern matters falling within subsection (b) of section 201. If an agency properly withholds the transcripts or electronic recordings under section 201 (e), it need not disclose the material pursuant to a Freedom of Information Act request, even though the nature of the information is such that it would otherwise have to be disclosed under that act. Except to the extent section 201 (e) is inconsistent, the other provisions of the Freedom of Information Act will continue to apply to the transcripts or electronic recordings of meetings, and to any request made under the Freedom of Information Act for access to such records. Thus, the transcripts or electronic recordings must be indexed in accordance with the Freedom of Information Act and publicly disclosed except to the extent section 201 (b) would apply to such information. An agency response to a request under the Freedom of Information Act for a transcript or electronic recording of a meeting would be subject to the time limits for agency action established by that act. A member of the public may invoke the enforcement provisions of that act to insure that agency treatment of the transcripts or electronic recordings comply with its provisions. Section 203 (a) also provides that the storage of transcripts or electronic recordings required by section 201 (e) are not subject to the Federal Records Act, chapter 33 of title 44, United States Code. Such material need not be kept beyond the period specified in section 201 (e). The committee expects, however, that in accordance with the principles established in the Federal Records Act, the agency will choose to permanently retain transcripts or electronic recordings of meetings of special interest. This subsection also specifies that nothing in title II authorizes the withholding of any information from Congress. Section 203(b). This subsection states that section 201 may not be used to deny requests by an individual for information under the Privacy Act, section 552a of title 5, United States Code, including information which might be contained in transcripts or electronic recordings of properly closed meetings. The principles of the Privacy Act govern whether or not an agency may withhold information from the public in general. The applicability of the Privacy Act should in no way be limited by enactment of this bill. SECTION 204-EFFECTIVE DATE This section provides that title II will become effective 180 days after enactment. The provisions of 201 (f), requiring the promulgation of regulations within 180 days from enactment, become effective immediately. This will assure that agencies will have promulgated the necessary regulations, and have established the necessary procedures, to allow complete compliance with section 201 once it does become effective. The 180-day period will also give the agencies an opportunity to review their regulations governing ex parte contacts and to revise them in accordance with section 202 of the bill. ESTIMATED COST OF THE LEGISLATION It is estimated that title I, opening meetings of congressional committees, and section 202 of title II, regulating ex parte contacts in formal agency procedings, will impose no additional cost. While it is difficult to estimate the probable cost of section 201, it is anticipated that most of the added cost will be for additional clerical and administrative work required by the section. The committee estimates that this additional cost will be minimal. Open meetings will require no tape recorders, no transcripts and no editing of tapes. The only cost to an agency of an open meeting will be the very small cost of providing the necessary public announcement. An agency closing a meeting will have the additional cost of making a transcript of the proceeding, or the cost of making an electronic recording. The estimated cost of section 201 will therefore depend on the number of meetings closed to the public. Since most of the agency meetings should be open to the public, the committee expects that the total cost of transcripts for closed meetings will be relatively minor. The cost of the verbatim record will be further reduced if an agency relies on an electronic recording. The cost of electronic equipment has been estimated to be only a few thousand dollars per agency. The cost of providing copies of the transcripts or tapes to the public will be borne by the member of the public requesting the copy. In a few cases, section 201 may require an agency to hire one additional employee to handle the added cherical and administrative work. ROLLCALL VOTE IN COMMITTEE In compliance with section 133 of the Legislative Reorganization Act of 1946, as amended, the rollcall vote taken during committee consideration of this legislation is as follows: Final Passage: Ordered Reported: 8 yeas-0 nays. Yeas: In compliance with subsection 4 of rule XXIX of the Standing Rules of the Senate, changes in existing law made by the bill, as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italic, and existing law in which no change is proposed is shown in roman): (2 U.S.C. 72a note) LEGISLATIVE REORGANIZATION ACT OF 1946 AS TABLE OF CONTENTS TITLE 1-CHANGES IN RULES OF SENATE AND HOUSE Sec. 101. *** PART 3-PROVISIONS APPLICABLE TO BOTH HOUSES Sec. 133B. Sec. 133C. Open Senate committee meetings. |