1 2 3 4 18 edge that it will be noticed, in which case the prohibi tions shall apply beginning at the time of his acquisition of such knowledge. "(2) This section does not constitute authority to with 5 hold information from Congress.". 6 (b) Section 551 of title 5, United States Code, is 7 amended 8 9 10 11 12 13 14 15 16 17 18 19 (1) by striking out "and" at the end of paragraph (12); (2) by striking out the "act." at the end of paragraph (13) and inserting in lieu thereof "act; and”; and (3) by adding at the end thereof the following new paragraph: "(14) ex parte communication' means an oral or written communication not on the public record with respect to which reasonable prior notice to all parties is not given.". (c) Section 556 (d) of title 5, United States Code, is 20 amended by inserting between the third and fourth sentences 21 thereof the following new sentence: "The agency may, to 22 the extent consistent with the interests of justice and the 23 policy of the underlying statutes administered by the agency, 24 consider a violation of section 557 (d) of this title sufficient 19 1 grounds for a decision adverse to a person or party who has 2 3 4 5 committed such violation or caused such violation to occur.". CONFORMING AMENDMENTS SEC. 5. (a) Section 410 (b) (1) of title 39, United States Code, is amended by inserting after "Section 552 6 (public information)," the words "section 552a (records 7 about individuals), section 552b (open meetings),". 8 9 10 11 12 13 14 (b) Section 552 (b) (3) of title 5, United States Code, is amended to read as follows: "(3) required or permitted to be withheld from the public by any statute establishing particular criteria or referring to particular types of information;". EFFECTIVE DATE SEC. 6. (a) Except as provided in subsection (b) of 15 this section, the provisions of this Act shall take effect one 16 hundred and eighty days after the date of its enactment. 17 (b) Subsection (g) of section 552b of title 5, United 18 States Code, as added by section 3 (a) of this Act, shall take 19 effect upon enactment. 94TH CONGRESS HOUSE OF REPRESENTATIVES REPT. 94-880 2d Session Part I { GOVERNMENT IN THE SUNSHINE ACT MARCH 8, 1976.-Ordered to be printed Mr. BROOKS, from the Committee on Government Operations, submitted the following REPORT together with ADDITIONAL VIEWS [To accompany H.R. 11656] The Committee on Government Operations, to whom was referred the bill (H.R. 11656) to provide that meetings of Government agencies shall be open to the public, and for other purposes, having considered the same, report favorably thereon with amendments and recommend that the bill as amended do pass. AMENDMENTS The two committee amendments, each of which is of a technical and conforming nature, are: Page 7, line 3, before "closed" insert "to be". Page 16, line 12, after "party" insert "or interested person". EXPLANATION OF AMENDMENTS The first amendment changes from the present to the future tense a reference to a meeting that has not yet been held. The second amendment conforms one subparagraph of the ex parte communications provisions of the bill to the remainder of those provisions. The prohibition on such communications to an agency decisionmaking official applies to anyone who is an "interested person". Subparagraph (D) of the proposed section 557 (d) (1) of title 5, United States Code, refers in its original form only to a "party", and the amendment adds "interested person" so as to make this subparagraph conform to the rest of section 4. 2 PURPOSE The purpose of H.R. 11656 is to provide that meetings of multimember Federal agencies shall be open to the public, with the exception of discussions of several narrowly defined areas. The bill also prohibits ex parte communications to and from agency decisionmaking officials with respect to the merits of pending proceedings. The basic premise of the Sunshine legislation is that, in the words of Federalist No. 49, "the people are the only legitimate fountain of power, and it is from them that the constitutional charter . . . is derived." Government is and should be the servant of the people, and it should be fully accountable to them for the actions which it supposedly takes on their behalf. In a theoretical sense, the agencies in the executive branch are already accountable to the people through the President, who is indirectly elected, and the Congress, whose members are directly elected. This theoretical accountability, though, leaves agency commissioners far removed from the public view in their day-to-day activities. Absent special circumstances, there is no reason why the public should not have the right to observe the agency decisionmaking process first-hand. In the words of FCC Commissioner Glen O. Robinson, who testified before the Government Information and Individual Rights Subcommittee on this legislation: *** Chief among the benefits [of the legislation] is increasing public understanding of administrative decisionmaking processes. *** I do not know whether that understanding will lead to greater confidence in administrative decisionmaking. *** Quite possibly, it could lead to less confidence. But either of these outcomes can be beneficial: if, in the light of sunshine a Government agency shows itself to be deserving of trust, then by all means it should have it; conversely, if that same sunlight reveals and agency to be inept, inefficient, and not in pursuit of the public interest, then obviously that agency does not deserve, and should not have, public trust. (Hearings on H.R. 10315 and H.R. 9868, p. 98.) The legislation requires that when an agency closes a meeting under one of the exemptions in the bill, it must make a recording or verbatim transcript of the closed portion and release to the public any part of the recording or transcript that does not contain exempt information. A second purpose of this requirement is to assure that a citizen has a meaningful remedy when a meeting has been illegally closed, namely, the release by the court of the transcript of the illegally closed portion. The purpose of the provisions of the bill prohibiting ex parte communications is to insure that agency decisions required to be made on a public record are not influenced by private, off-the-record communications from those personally interested in the outcome. 80-459 O 77-34 3 SUMMARY OF MAJOR PROVISIONS OF THE LEGISLATION The open meeting provisions would apply to the approximately 50 Federal agencies that (1) are presently covered by the Freedom of Information Act and the Privacy Act, and (2) are headed by a body of two or more members, a majority of whom are chosen by the President with the advice and consent of the Senate. The measure is also expressly made applicable to the Federal Election Commission and the Post Service. Meetings covered under the bill include not only sessions at which formal action is taken, but also those at which a quorum of members deliberates regarding the conduct or disposition of agency business. A chance encounter or social gathering would not be a meeting within the meaning of the bill so long as no agency business is conducted or disposed of. The bill requires that every part of every meeting be open to the public unless it falls within one of the bill's 10 specific exemptions. In case of doubt as to whether a portion of a meeting is exempt, the presumption is to be in favor of openness. Even if a matter falls within an exemption, the discussion must be open where the public interest so requires. No meeting or portion thereof may be closed unless a majority of the entire membership votes to take such action. Such a vote need not itself occur during a meeting and could properly be taken by circulating a written ballot or tally sheet. If such a vote is taken during a meeting, the discussion and vote must of course be open to the public unless within one of the exemptions. A copy of each vote on closing a meeting must be made available to the public whether or not the meeting or portion is closed. This will inform the public as to the full voting record of each agency member on openness questions. When a vote on the issue of closing fulfills the requirements for closing, a full written explanation of the action and a list of all persons expected to attend the meeting must also be made public. Agencies are required to public announce, at least one week prior to a meeting, its date, location, and other relevant information." The keeping of a complete, verbatim transcript or electronic recording of each portion of a meeting closed to the public would be required (except for discussions dealing with adjudications or agency participation in civil actions), and any portion of each transcript or recording whose release would not have the effect set forth in one or more of the exemptions would have to be made available to the public. Information may be deleted only if it falls within an exemption and disclosure is not required by the public interest, and deletions would be replaced by a written explanation of the reason and the statutory authority for each. Written minutes of open meetings will also be required to be kept and made publicly available. Any person could challenge in court the closing of a meeting or any other violation of the openness requirements of the bill, and the burden |