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court, having due regard for orderly administration and the 2 public interest, as well as the interests of the party, may 3 grant such equitable relief as it deems appropriate, includ4 ing granting an injunction against future violations of this 5 section, or ordering the agency to make available to the pub6 lic the transcript or electronic recording of any portion of a 7 meeting improperly closed to the public. Except to the extent 8 provided in subsection (i) of this section, nothing in this sec9 tion confers jurisdiction on any district court acting solely 10 under this subsection to set aside or invalidate any agency 11 action taken or discussed at an agency meeting out of which 12 the violation of this section arose.

13 "(i) Any Federal court otherwise authorized by law to 14 review agency action may, at the application of any person 15 entitled to seek such review, inquire into violations by the 16 agency of the requirements of this section and afford any 17 such relief as it deems appropriate.

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"(j) The court may assess against any party reason19 able attorney fees and other litigation costs reasonably in20 curred by any other party who substantially prevails in any 21 action brought in accordance with the provisions of sub22 section (g), (h), or (i) of this section, except that costs 23 may be assessed against an individual member of an agency 24 only in the case where the court finds such agency member 25 has intentionally and repeatedly violated this section and

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1 against the plaintiff only where the court finds that the suit

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was initiated by the plaintiff primarily for frivolous or

3 dilatory purposes. In the case of assessment of costs against

4 in agency, the costs may be assessed by the court against 5 the United States.

6 "(k) Each agency subject to the requirements of this 7 section shall annually report to Congress regarding its com8 pliance with such requirements, including a tabulation of 9 the total number of agency meetings open to the public, 10 the total number of meetings closed to the public, the rea11 sons for closing such meetings, and a description of any 12 litigation brought against the agency under this section, 13 including any costs assessed against the agency in such 14 litigation (whether paid by the agency or otherwise). 15 "(1) Except as specifically provided in this section, 16 nothing herein confers any additional rights on any person, 17 or limits the present right of any person, to inspect or copy, 18 under section 552 of this title, any documents or other written 19 material in the possession of any agency. In the case of any 20 request made pursuant to section 552 of this title to copy 21 or inspect the transcripts or electronic recordings described 22 in subsection (f) of this section, the provisions of this Act 23 shall govern whether such transcripts or recordings shall be 24 made available in accordance with such request. The require25 ments of chapter 33 of title 44, United States Code, shall not

80-459 O 77-29

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1 apply to the transcripts and electronic recordings described in

2 subsection (f) of this section.

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"(m) This section does not constitute authority to with

4 hold any information from Congress, and does not authorize 5 the closing of any agency meeting otherwise required by 6 law to be open.

7 "(n) Nothing in this section authorizes any agency 8 to withhold from any individual any record, including tran9 scripts or electronic recordings required by this Act, which is otherwise accessible to such individual under section 552a 11 of this title.".

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SEC. 4. The chapter analysis of chapter 5 of title 5,

13 United States Code, is amended by inserting:

"552b. Open meetings."

14 immediately below:

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"552a. Records about individuals.".

SEC. 5. (a) Section 557 of title 5, United States Code,

16 is amended by adding at the end thereof the following new 17 subsection:

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"(d) (1) In any agency proceeding which is subject to subsection (a) of this section, except to the extent 20 required for the disposition of ex parte matters as authorized 21 by law

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"(A) no person outside the agency shall make or

cause to be made to any member of the body com

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prising the agency, administrative law judge, or other employee who is or may reasonably be expected to

be involved in the decisional process of the proceeding,

an ex parte communication relative to the merits of the proceeding;

"(B) no member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of the proceeding, shall make or cause to be made to any person outside the agency an

ex parte communication relative to the merits of the proceeding;

"(C) a member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of such proceeding who receives, or who makes, a communication prohibited by this subsection shall place on the public record of the proceeding: "(i) all such written communications;

"(ii) memoranda stating the substance of all

such oral communications; and

"(iii) all written responses and memoranda

stating the substance of all oral responses to the materials described in clauses (i) and (ii) of this subparagraph;

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"(D) in the event of a communication prohibited

by this subsection and made or caused to be made by a party, the agency, administrative law judge, or other

employee presiding at the hearing may, to the extent consistent with the interests of justice and the policy of the underlying statutes, require the person or party to show cause why his claim or interest in the proceeding should not be dismissed, denied, disregarded, or otherwise adversely affected on account of such violation;

"(E) the prohibitions of this subsection shall apply beginning at such time as the agency may designate, but in no case shall they begin to apply later than the time. at which a proceeding is noticed for hearing unless the person responsible for the communication has knowledge that it will be noticed, in which case the prohibitions

shall apply beginning at the time of his acquisition of such knowledge.

"(2) This section does not constitute authority to with

19 hold information from Congress.

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"(3) Subparagraphs (A) and (B) of paragraph (1) are not intended to prohibit inquiries or responses relating 22 solely to the procedural status of a matter pending before an 23 agency: Provided, That any such inquiry or response shall 24 be placed on the public record pursuant to subparagraph (C) 25 of paragraph (1)."