I am hopeful that the positive experience of many committees which have held open markup sessions will lead to an even better record in future months. Of particular concern is the way Federal funds are allocated. With one exception, all House Appropriations Committee and subcommittee markup sessions have, I understand, been held in closed session. While I am sure the committee faces unique problems, I also feel that the public has a right to know what factors lead to congressional decisions on how to spend the public's money.

Today, however, I am introducing legislation to focus singularly on executive branch deliberations and agency procedures.

Following the introduction of S. 3881 in the 92d Congress by Senator Lawton Chiles, he worked with interested parties in redrafting the "sunshine" bill to make certain provisions more specific and to include additional requirements including a prohibition on all ex parte communications in cases of rulemaking or adjudication by an agency. The bill I am introducing today is identical to the provisions contained in title II-Agency Procedures of the redrafted bill introduced in the 93d Congress as S. 260 by Senator Chiles.

This bill would require that all meetings of multimember Federal agencies at which any official action is discussed, considered, or taken-must normally be open to the public. These meetings could be closed only if their proceedings fell within one or more of the specific exemptions as prescribed by this act and only if a majority of the membership, in a public vote, decided to close the meeting. These exemptions are offered in the form of broad categories. They would include 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; and disciplinary proceedings which could adversely affect the reputation of an individual. I am confident that these broad categories can be improved upon greatly with the full benefit of public input and committee consideration.

Furthermore, the bill provides that any citizens could challenge an agency's implementing regulations or decision to close a particular meeting. In such cases the courts would decide whether the material in question conforms to the spirit of this act and whether it falls within the domain of that specific exemption as enacted in the law. Of particular importance I feel is the provision of the bill regarding ex parte communications between an interested person and a member or employee of the agency in the following types of proceedings: Any case of agency adjudication or rulemaking on the record which under the Administrative Procedure Act is subject to a requirement of trial-type procedures;

Any agency rulemaking proceedings with respect to which the agency is required by the Administrative Procedure Act to afford public notice and opportunity for comment by interested persons; Any proceedings to prepare an environmental impact statement required under the National Environmental Protection Act.

The agency involved would be required to publish any such ex parte communications on the public record.

This is an issue which I have been concerned with since 1960 when I first introduced legislation entitled the "Agency Hearing Standards of Conduct Act." That bill proposed a mandatory requirement that all communications with an agency, direct or indirect, regarding

matters adversary in nature, be made openly and as a part of the agency proceeding in question. As proposed, it would have applied to all agency hearing proceedings which by law are subject to notice and opportunity for hearing-just as the sunshine bill requires. After notice of hearing, it would have been unlawful for any agency employee connected with the case to permit, entertain, or consider any interview, argument or communication concerning the case except through official hearing procedures. Any such attempts would be required to be disclosed as the sunshine bill requires.

Very stringent ex parte provisions were included in the Postal Reorganization Act of 1970 with respect to the Postal Rate Commission proceedings. In addition, I notice that the Attorney General has indicated that the Department of Justice will keep a record of all contacts and communications by persons outside the Department.

These are admirable steps, but I believe that the prohibition should apply uniformly to all agency proceedings involving adjudication or rulemaking. This is a very critical issue which has had the full support of the American Bar Association since at least 1956. Since that time the ABA has endorsed and supported efforts to enact the necessary Federal legislation. In a resolution adopted by the ABA House of Delegates in 1958, the Association stated:

The American Bar Association has repeatedly urged that the organization and procedure of federal administrative agencies in the exercise of adjudicatory powers provide (1) that hearing officers be assured independence of judgment and impartiality in the trial of agency cases, (2) that the integrity of the judicial process at all levels in the agency be protected by confining decisions to the public hearing record in an environment totally free from any ex parte off-therecord representations, influences or pressures from any source.

In addition to making sure that all agency proceedings are free from "influence peddling," it is equally important that agency deliberations be conducted in open session. Instances of Federal administrative agencies conducting closed meetings on matters of substantial public concern are not uncommon. Oftentimes, closed meetings are such wellkept secrets that the public is not even aware that meetings are being held. The first contact that the public might have with the regulations promulgated by the agency could very well be at the point of administration.

I offer as an example of this practice the Federal Power Commission's proposed rulemaking to establish a uniform national rate for natural gas-docket No. R-389B. The FPC in proposing this rulemaking has sought little public input for its consideration. No public hearings were planned on these measures. Furthermore, there is little reason to think that the FPC would open up its meetings on this proposal as it has been FPC policy to keep Commission meetings closed.

The problem of natural gas pricing is one of great concern to the general public. The proposal under consideration by the FPC would have a tremendous impact on the availability and allocation of this very important energy resource. The "energy crisis" is not a private problem but a public one. As such, consideration of this rulemaking which will contribute to the determination of our national energy policy must be debated and scrutinized in a public forum.

Common Cause, a strong advocate of eliminating secrecy in government, has FPC's plans on the ratesetting proposals. In recent weeks they have pressed the FPC to fully open up its consideration of this

proposal to the public. In response to Common Cause's efforts, the FPC has promised to "consider" opening up its proceedings on this issue. Not surprisingly, this consideration will take place behind closed doors.

In January, I spoke of the fundamental challenge facing the 93d Congress:

That challenge is whether the Congress will meaningful 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.

Six months later this challenge still remains for the Congress to confront, and the stakes are even higher than I had envisioned. The unprecedented secrecy within the executive branch continues to subvert a proper balance within our Government by denying both the Congress and the public access to information which is rightfully theirs. This is justified by extraordinary interpretations of such loosely defined principles as "Executive privilege" and "national security.

The results are unmistakable. The executive branch has sought to centralize all policymaking functions; and I am sorry to say, it has been all too successful in this quest. This success is in no small part due to the proliferation of secrecy at all levels of Government operations. Secrecy and covert operations have served to distort the perspective of too many elements of our Government. A democratic government must remain accountable to the public which it is serving, Congress must take the initiative and remove the veil of secrecy from our Government and reestablish its link of accountability with the people.

I hope that consideration can be given to the "sunshine" proposal in ongoing efforts to strengthen and expand the Freedom of Information Act. I urge our colleagues to join in support of this important measure.

93D CONGRESS 1ST SESSION

H. R. 10000

IN THE HOUSE OF REPRESENTATIVES

AUGUST 3, 1973

Mr. FASCELL introduced the following bill; which was referred to the Committee on Government Operations

A BILL

To provide that meetings of Government agencies shall be open to the public, and for other purposes.

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Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 3 SECTION 1. SHORT TITLE.-This Act may be cited as 4 the "Government in the Sunshine Act".

5 SEC. 2. DECLARATION OF POLICY.-It is hereby de6 clared to be the policy of the United States that the public 7 is entitled to the fullest practicable information regarding 8 the decisionmaking processes of the Federal Government. SEC. 3. DEFINITIONS.-For purposes of this Act(1) "National security" means

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(A) the protection of the United States against

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actual or potential attack or other hostile acts of a foreign

power;

(B) the obtaining of foreign intelligence information deemed essential to the security of the United States;

(C) the protection of national security information against foreign intelligence activities; or

(D) the protection, to the extent deemed necessary by the President of the United States against the overthrow of the Government by force; and

(2) "Person" includes an individual, partnership, cor11 poration, associated governmental authority, or public or

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AGENCY PROCEDURES

SEC. 4. (a) This section applies, according to the pro

15 visions thereof, to any agency, as defined in section 551 (1) of title 5, United States Code, where the body com17 prising the agency consists of two or more members. Ex18 cept as provided in subsection (b), all meetings (includ19 ing meetings to conduct hearings) of such agencies at 20 which official action is considered or discussed shall be open to the public.

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(b) Subsection (a) shall not apply to any portion or 23 portions of an agency meeting where the agency determines

24 by vote of a majority of its entire membership—

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(1) will probably disclose matters necessary to be