[From the Congressional Record-House, Jan. 6, 1973]

(H 43-H 44)

FEDERAL GOVERNMENT IN THE SUNSHINE-OPEN MEETINGS

LEGISLATION

(Mr. FASCELL asked and was given permission to address the House for 1 minute, and to revise and extend his remarks and include extraneous matter.)

Mr. FASCELL. Mr. Speaker, I have introduced H.R. 4, "the Federal Government in the sunshine" bill, with substantial bipartisan support. This is a vital step in our efforts to eliminate secrecy in government, to make the Congress more responsive to the people, and to strengthen the legislative branch of Government, by requiring that all meetings, with specified execptions, be open to the public.

In testimony before the Mathias-Stevenson ad hoc hearings on congressional reorganization last month, John Gardner, chairman of Common Cause, succinctly summarized the need for the "government in the sunshine" bill. Mr. Gardner said:

Doing the public's business in secret severs the link of accountability between the elected official and his constituents. What they can't see, they can't judge. Accountability depends on access.

The "sunshine" bill provides that access, both to the deliberative process of the House and Senate, and to the decisionmaking processes of the executive branch.

The bill I am introducing is identical to open meetings legislation sponsored in the 92d Congress in the Senate by Florida Senator LAWTON CHILES. I also sponsored the bill in the last Congress. It is patterned after the Florida "sunshine" law enacted in 1967, and its main provisions include:

A requirement that all meetings, including those to conduct hearings, of Government agencies, at which official action is taken, considered, or discussed, shall be open to the public, with specified exceptions; a requirement that most meetings of congressional committees shall be open to the public; a requirement that a transcript of all meetings described above be made available to the public; and court enforcement of the open meetings requirement for Federal agencies.

Exceptions to these provisions would be in matters relating to national defense and security; items required by statute to be kept confidential; meetings related to internal management of an agency or committee; or disciplinary proceedings which could adversely affect the reputation of an individual.

The provisions relating to the meetings of the House and Senate apply to all meetings, including executive sessions for markup of bills and conference committees. In the 92d Congress, 44 percent of all House committee meetings were closed to the public. In the Appropriations Committee, 92 percent of all meetings were conducted behind

closed doors, and in the Ways and Means Committee, 63 percent were so conducted. Clearly, in my judgment, the public has a right to know how decisions were reached on how the taxpayers' money is to be allocated, and the Congress has the responsibility to insure that they do know.

I am not implying, nor would I, that actions taken by any committee in secret are actions which would have necessarily been different had the meetings been held in open session. The fact is, that the public and Members of Congress as well, ought to know how decisions were reached, what alternatives were considered and discarded, and why. We in the Congress have only to gain from enactment of an open meetings law. The level of public confidence in the legislative process is seriously low. By insuring full access to our decisionmaking process, we can eliminate any uncertainties, and help to restore the public's confidence in its elected officials. We can increase the Congress' accountability by increasing the public's access to Congress' work.

We face a fundamental challenge with the convening of the 93d Congress. That challenge is whether the Congress will meaningfully reassert its initiative in the policymaking process, reestablish its role as a viable force for leadership and change, and assume its constitutional responsibility and authority. Enactment of the open meetings law would aid the Congress in its efforts to meet this challenge.

The unprecedented secrecy in the executive branch has been cited as one of the reasons for the steady erosion of congressional influence on Government policies. Congress, it has been said, exists today merely to ratify or modify proposals submitted by the Executive. Clearly this is an exaggeration but, nevertheless, if Congress and the public had access to the decisionmaking processes within the departments and agencies of Government, we could insure that the intent of Congress, as expressed in the legislation we enact, is carried out.

Unless Congress takes the initiative, the executive branch will continue to centralize all policymaking functions, keeping them from scrutiny by the Congress and the public. The Sunshine bill, by providing full access at all levels of government, will not only provide for greater accountability of the government to the people, but also, I believe, strengthen the role of Congress.

A frequent criticism of the open-meetings proposal is that it would encourage and foster secret preconference agreements which would then be approved, pro forma, in an open meeting. Clearly this possibility exists, and we must make certain that safeguards against the circumvention of the bill's intent are included in any legislation enacted.

In Florida, some officials did try to circumvent the State law by holding informal sessions in private. The Florida courts have ruled in such case, however, that a secret meeting occurs when officials meet so as to avoid being seen or heard by the public, and that whether the meeting is formal or not, such secretive action violates the Sunshine Law. As a result of a series of State court decisions, all meetings of government officials must be, and I believe for the most part are, open to the public.

The bill, as now written, gives the U.S. district courts original jurisdiction over actions brought against any federal government agency which fails to comply with the bill's open meetings requirement. One of the issues which will have to be resolved during hearings is what

enforcement procedure should be established for congressional meetings.

Mr. Speaker, on the Senate side, the chairman of the Government Operations Subcommittee on Executive Reorganization and Government Research, Senator ARBAHAM RIBICOFF, has announced that hearings will be held on open meetings legislation early this year. I am hopeful that with broad, bipartisan support, similar hearings will be held by the Rules Committee in the House, and serious consideration will be given to this proposal early in the session.

I am inserting a list of those Members who have agreed to cosponsor H.R. 4 the Federal Government sunshine bill and the text of the bill. I urge all Members to study the bill's provisions carefully, and join with us in supporting this effort to make the Congress and the executive branch more responsive to the people.

The very concept of democracy implies open government, where the people can participate or at least know what actions affecting their lives are being taken. Yet, there are hundreds of examples of unneces sary secrecy throughout our Government, in the executive branch, the regulatory agencies and within the Congress as well.

The budget making and appropriations process is one area which most certainly should be open to public view and yet, as I discussed, is one of the most closed areas we have.

The people of Florida recognized this need when they passed the State sunshine law in 1967. The time has come for the Federal Government to take such positive action as well.

This bill, while forging new paths toward a more responsive government, is also a continuation of reforms that have already been achieved and steps that have already been taken. In the early 1950's Congress enacted what can be called a charter of citizen access by establishing the principle, under the Freedom of Information Act, that the work of the Government and its bureaucrats is really the work of the people and, as such, subject to review and inspection by the people. By removing the veil of secrecy that shrouded much government activity, the Freedom of Information Act focused rays of light on the dark recesses of conduct.

All this is to say that the task of letting sunshine into the operation of government is a continuing one-one that is guided by the simple standard that government acts best when its actions are known, its officials accountable, and its policies responsive.

I include the following:

LIST OF SPONSORS

Mr. Fascell, Mr. Hamilton, Mr. Fish, Mr. Waldie, Ms. Abzug, Mr. Gude, Mr. Reuss, Mr. Udall, Mr. Gibbons, Mr. Rosenthal, Mr. Rees, Mr. Ware, Mr. Leggett, Mr. Charles H. Wilson, Mr. Zwach, Mr. Drinan, Mr. McCloskey, Mr. Yatron, Mr. Studds, Mr. Andrews of North Dakota, Mr. Helstoski, Mr. Brasco;

Mr. Conyers, Mr. O'Hara, Mr. Stokes, Mr. Mayne, Mr. Bell, Mr. W. C. (Dan) Daniel, Mr. Conte, Mr. Owens, Mr. Mazzoli, Mr. Podell, Mr. Rogers, Mr. Haley, Mr. Pritchard, Mr. Harrington, Mr. Moss, Mr. Fraser, Mr. Jones of Oklahoma, Mr. Gunter, Mr. Aspin, Mr. Zablocki, Mr. Hechler of West Virginia.

H.R. 4

A bill to provide that meetings of Government agencies and of congressional committees shall be open to the public, and for other purposes

Be it enacted by the Senate and House of Representatives of the United States of America assembled, That (a) except as provided in subsection (b), all meet

ings (including meetings to conduct hearings) of any Government agency at which any official action is considered or discussed shall be open to the public.

(b) Subsection (a) shall not apply to that portion of any meetings in which the action or proposed action to be taken, considered, or discussed by an agency— (1) relates to a matter affecting the national security,

(2) relates solely to the internal management of such agency,

(3) might tend to reflect adversely on the character or reputation of any individual who is subject to any proposed or potential sanction by such agency, or (4) might divulge matters required to be kept confidential under (specified statutory provisions).

Provided, That this subsection does not authorize closed meetings or the withholding of information from the public except as specifically stated in this subsection, and is not authority to withhold information from Congress.

(c) Each agency subject to the requirements of this section shall, within one hundred and eighty days after the effective date of this Act, establish through publication in the Federal Register procedures for providing public notice of meetings required by this section to be open to the public. Such notice shall be given as far in advance of meetings as is practicable, in order to facilitate attendance of such meetings by persons desirous of doing so.

SEC. 2. (a) Section 133 (b) of the Legislative Reorganization Act of 1946 as amended by section 103 (a) of the Legislative Reorganization Act of 1970 is amended as follows:

"(1) Each meeting (including meetings to conduct hearings) of each standing, select, special or conference committee of the Senate shall be open to the public, except when the committee determines that the matters to be discussed, or the testimony to be taken, relates to a matter of national security, relates solely to the internal management of such committee, may tend to reflect adversely on the character or reputation of the witness or any other individual, or may divulge matters required to be kept confidential under other provisions of law."

(2) Clause 27(f) (2) of rule XI of the Rules of the House of Representatives is amended to read as follows: "Each meeting (including meetings to conduct hearings) of each standing, select, special, or conference committee shall be open to the public, except when the committee determines that the matters to be discussed, or the testimony to be taken, relates to a matter of national security, relates solely to the internal management of such committee, may tend to reflect adversely on the character or reputation of the witness or any other individual or may divulge matters required to be kept confidential under other provisions of law."

SEC. 3. A transcript shall promptly be made of each meeting which is open to the public pursuant to the provisions of this Act and copies of such transcript shall promptly be made available for public inspection and copying.

SEC. 4. The district courts of the United States shall have original jurisdiction of actions to render declaratory judgments or to enforce, by injunction or otherwise, the first section of this Act and section 3 insofar as it relates to that section. Such actions may be brought by any person in the district where such person resides, or has his principal place of business, or where the agency whose action is complained of resides.

SEC. 5. DEFINITIONS.-For the purpose of the Act

(1) "Government agency" means each authority of the Government of the United States (whether or not it is within or subject to review by another Government agency) having more than one member, but does not include

(a) the Congress

(b) the courts of the United States

(c) military authorities.

(2) "person" includes an individual, partnership, corporation, association, a public or private organization other than an agency.

SEC. 6. This Act shall take effect on the ninetieth day after the date of its enactment.

[From the Congressional Record-House, Aug. 3, 1973]

(H 7482-H 7483)

GOVERNMENT IN THE SUNSHINE

(Mr. FASCELL asked and was given permission to extend his remarks at this point in the Record and to include extraneous matter.)

Mr. FASCELL. Mr. Speaker, the phrase "freedom of information" takes on greater importance daily as the Senate Select Committee on Presidential Campaign Activities continues to delve into the Watergate incident and related activities of the 1972 Presidential campaign. The claim of executive privilege, which clearly denies information not only to the Congress but to the Nation as well, has become a major tool for the withholding of Government material. The propriety of certain actions by the U.S. Department of Agriculture in negotiating last year's grain agreement with the Soviet Union has been questioned with respect to those who perhaps had advance knowledge of the sale while the vast majority of Americans were kept in the dark. Furthermore, indictments have been brought against former Government officials who are charged with exercising improper influence in proceedings before the Securities and Exchange Commission.

These are only a few of the issues and incidents which seem to point to a growing inclination on the part of Government to pursue a course dedicated to letting the people know only that information which the Government feels they should know. Decisionmaking in the Government clearly follows a closed-door, need-to-know policy, weighted in favor of a select few.

Early in the 93d Congress I introduced legislation called the Federal Government in the sunshine bill with the bipartisan support of more than 50 Members of the House. Patterned after the State "sunshine law" in Florida, that bill was designed to eliminate secrecy in both the executive and legislative branches of the Government by making deliberative processes in both branches open to public scrutiny.

With the initial, strong support of the Democratic caucus, a major objective of the "sunshine" bill was achieved early in March when the House adopted House Resolution 259. That resolution, which I sponsored, amended the Rules of the House to strengthen the presumption that all committee meetings-including those for the marking up of bills, which have traditionally been held in executive or closed sessionshould be open unless action is taken in open session by a recorded vote to close such meetings.

Prior to the adoption of this rule, Congressional Quarterly reported that 42 percent of the meetings held in the House during the 1972 session were closed to the public and the press. A study by Common Cause following adoption of the rule change, from March 7 through June 15, showed that of 284 meetings to draft bills, 47 were held in closed session, or approximately 16 percent.