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SUPPLEMENTAL VIEWS OF HON. JOHN CONYERS

We think that this is an excellent bill, though we regret certain weakening amendments made by the Administrative Law and Governmental Relations Subcommittee and adopted by the full Judiciary Committee. We believe that one such change is of particular importance, and it is to this change that our supplemental views are specifically addressed.

The bill, as originally considered by the Committee on Government Operations and its Government Operations and Individual Rights Subcommittee, required that when a deletion of exempt material was made from a meeting transcript, the agency was to explain the reason and statutory authority for the deletion and provide a summary or paraphrase of the deleted material. The Government Information and Individual Rights Subcommittee, in a compromise move, dropped the requirement of a summary or paraphrase, leaving only the requirement that a statement of the reason and the statutory basis for the deletion be set forth.

Our Subcommittee on Administrative Law and Governmental Relations further amended the bill by dropping even the requirement for a statement of the reason and statutory authority for the deletion, and the full Judiciary Committee concurred in this amendment. The effect of this change is to leave only a blank space where material is deleted, providing not even a hint of what has been removed, or by what authority.

This would leave a citizen interested in what had occurred at a meeting entirely in the dark about what has been deleted. To provide the reason and the applicable statute would impose no significant burden upon the administrative agency, while supplying-as is generally required with respect to agency decisions-the reason for the agency action. We note that a similar explanation is required under the Federal Advisory Committee Act. The absence of even this simple explanation is likely to generate unnecessary litigation from citizens who do not know the reason for the deletion, thus wasting the taxpavers' time and money in defending needless actions.

We believe that the people's right to know, as expressed in this legislation, includes the right to be given the reason why they are prevented from having information about agency action. We believe that the compromise version of this provision that was adopted by the Committee on Government Operations properly balanced the right to know against the need to keep certain matters secret and urge that the compromise language be reinstated.

JOHN CONYERS.

[From the Congressional Record-House, July 28, 1976]

(H 7863-H 7902)

PROVIDING FOR CONSIDERATION OF H.R. 11656, GOVERNMENT IN THE SUNSHINE ACT

Mr. PEPPER. Mr. Speaker, by direction of the Committee on Rules, I call up House Resolution 1207 and ask for its immediate consideration.

The Clerk read the resolution, as follows:

H. RES. 1207

Resolved, That upon the adoption of this resolution it shall be in order to move that the House resolve itself into the Committee of the Whole House on the State of the Union for the consideration of the bill (H.R. 11656) to provide that meetings of Government agencies shall be open to the public, and for other purposes. After general debate, which shall be confined to the bill and shall continue not to exceed two hours, one hour to be equally divided and controlled by the chairman and ranking minority member of the Committee on Government Operations and one hour to be equally divided and controlled by the chairman and ranking minority member of the Committee on the Judiciary, the bill shall be read for amendment under the five-minute rule. At the conclusion of the consideration of the bill for amendment, the Committee shall rise and report the bill to the House with such amendments as may have been adopted, and the previous question shall be considered as ordered on the bill and amendments thereto to final passage without intervening motion except one motion to recommit with or without instructions. After the passage of H.R. 11656, the Committee on Government Operations shall be discharged from the further consideration of the bill S. 5, and it shall then be in order in the House to move to strike out all after the enacting clause of the said Senate bill and insert in lieu thereof the text of the bill H.R. 11656 as passed by the House.

The SPEAKER. The gentleman from Florida (Mr. PEPPER) is recognized for 1 hour.

Mr. PEPPER. Mr. Speaker, I yield 30 minutes to the able gentleman from Ohio (Mr. LATTA), pending which I yield myself such time as I

may consume.

Mr. Speaker, House Resolution 1207 provides for consideration of H.R. 11656, Government in the Sunshine Act, which would require that meetings of Federal regulatory and other agencies be open to the public, that transcripts be made of closed meetings and released, minus deletion of subjects exempt from disclosure under the provisions of the bill, and which would provide judicial review for challenges of improper closing of meetings, among other provisions.

This is an open rule, providing 2 hours of general debate: 1 hour controlled by the chairman and ranking minority member of the Government Operations Committee and 1 hour controlled by the chairman. and ranking minority member of the Judiciary Committee. The bill is to be read for amendment under the 5-minute rule.

The rule further provides that upon passage of H.R. 11656, the Committee on Government Operations shall be discharged from further

consideration of S. 5. It then shall be in order to strike all after the enacting clause of S. 5 and to insert in lieu thereof the provisions contained in H.R. 11656 as passed by the House.

The legislation requires that most meetings of independent Federal agencies be open to the public. It applies to agencies covered by the Freedom of Information Act, as well as to the Federal Election Commission, Postal Service, and to organizations headed by two or more members, a majority of whom are appointed by the President with Senate confirmation. Ten specific exemptions, which generally parallel those in the Freedom of Information Act, are provided. The exemptions secure a balance against the right to know and competing values such as the national security or foreign policy, individual privacy rights, and economic stability.

Ex parte communications between agency officials and outsiders affected by pending agency business are prohibited. The bill's ex parte provision stems from a 2-year effort to limit secret contacts with officials by lawyers, lobbyists, and others interested in agency proceedings, and it is similar to a draft proposed by the American Bar Association in 1974.

Forty-eight States have enacted some type of open meeting provisions, including my State of Florida. Mr. Speaker, I believe Florida is one of the pioneers in this needed reform. The experience of States has dispelled concerns that open meetings inhibit free discussion or cast a distorted image on agency proceedings. Instead, open meetings have produced better debate, better reasoned decisions, increased public understanding of agency procedures, and less distrust of govern

ment.

Mr. Speaker, this legislation was considered 3 years in the Senate prior to its passage in that body last November by a vote of 94 to 0. Since 1973, most House committee meetings have been open to the public, and recently most Senate committees meetings and HouseSenate conferences have been opened. The bill extends this Federal policy into independent Federal agencies. The public has a right to full disclosure of Government decisionmaking processes insofar as the extension of sunshine is consistent with the privacy and the protection of other rights provided for in the bill.

Mr. Speaker, I shall support one amendment to this bill to be offered by the gentleman from New York (Mr. HORTON).

Mr. Speaker, I believe this is a meaningful milestone in the protection of our democracy, and I hope that this bill will be enacted with, as I said, the amendment that I hope will be adopted by this House. Mr. Speaker, I therefore urge the adoption of House Resolution 1207 so that we may proceed to the consideration of H.R. 11656.

Mr. LATTA. Mr. Speaker, I yield myself such time as I may consume. (Mr. LATTA asked and was given permission to revise and extend his remarks.)

Mr. LATTA. Mr. Speaker, I would like to point out something in this bill to the Members of the House which I think should be clarified-and I have heard no mention that this matter will be clarifiedas it affects every Member of this House and his constituency.

We do some foolish things around here in the interest of reform and sunshine and true happiness without ever thinking about what the end result might be.

Mr. Speaker, let me give the Members an example. Some time back we passed a piece of legislation-and I am not going to name itand we found out later that before we could contact an agency in behalf of one of our constituents, we had to have a written authorization.

Remember that? I will venture to say that not one-tenth of the membership of this House knew that that requirement was in that legislation when it passed this body.

Mr. Speaker, when a Member has an emergency situation in his district and a constituent contacts him about that emergency situation, when the Member has to have a written authorization to contact that agency about that emergency, I think that is absolutely wrong. Mr. Speaker, we never intended to require such a thing, but it is in the law; and we now have to follow it. As a result, a Member cannot serve his constituency in an expeditious manner in all cases.

Mr. Speaker, Members are sent here to serve not only the United States of America but their constituency.

Let me refer to something in this legislation which I pointed out when the matter was before the Committee on Rules, and I have reference to ex parte communications. Each one of us, as Members of Congress, will be affected by this legislation if it passes in its present form. How will we be affected?

Let us turn to page 17, at the top of the page, and I am not going to read the entire section because I do not want to burden you with this, but unless something is done about it, our malfesance is going to come home to roost real fast if this legislation is enacted as written: 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;

Et cetera, et cetera.

What are they talking about? You call up an agency of the Government, to make an inquiry, as you will be doing, assuming this legislation goes on the books as written, that communication will be ex parte and will be a part of the public record for the world to see. That call will concern your constituent's business, not the world's.

Now is that what we want? Is that what our constituents want when he or she contacts us about a personal problem they have with an agency of this Government? I do not think so. I repeat, I do not think so. But there is no privilege, no privilege, written into this legislation to cover that situation.

I say to my colleagues I believe such matters should be privileged communications. When a constitutent contacts you about a tax problem, it is his problem with the Government, and vice versa. Should that communication go on the public record and be open for the world to see? I think not. I think not.

But the way this legislation is before us today, and I have heard of no effort being made to change it, it will go on the public record. My friends, this is our unwanted provision in this legislation and it affects your constituency and mine.

I talked to some of the leadership about this when the matter was before the Committee on Rules and they did not know our activities

in behalf of constituents would be covered. So I think it should be corrected. We are all for sunshine, let the sun come in, let these agencies open up their hearings. But when you contact them about a constituent's personal matter, I do not think it ought to go on the public record. Hopefully this House will adopt an amendment during the 5minute rule which will provide the privilege that the constituent is entitled in these matters.

Mr. PEPPER. Does the gentleman from Ohio have further requests for time?

Mr. LATTA. Mr. Speaker, I yield 1 minute to the gentleman from California (Mr. GOLDWATER).

Mr. GOLDWATER. Mr. Speaker, I thank the gentleman for yielding. Mr. Speaker, I understood the gentleman from Ohio to say that his concern about the bill was that any communications between an agency of the Government and an individual that are on private matters would be open to public exposure?

Mr. LATTA. That is a possibility under the language as written.

Mr. GOLDWATER. In talking to the leadership and the committee when this came before the Committee on Rules, did they indicate a concern about this and that they are going to make an effort to change that provision?

Mr. LATTA. Mr. Speaker, because I believe that this is a very, very important matter, one that affects every Member of this House and his constituency, and because the gentleman from California (Mr. GOLDWATER) has asked a very important question, I would ask the gentleman to again repeat his question.

Mr. GOLDWATER. I was surprised, and I was wondering if in questioning the individuals, the chairmen of the committees that wrote this law indicated a concern for this apparent violation of privacy. Then they indicate that they are going to examine this and perhaps offer amendments on the floor; is that correct?

Mr. LATTA. In answer to the gentleman, I have, as I indicated, no knowledge at this very moment that an amendment will be offered to correct the language to which I object. I am hopeful than an amendment will be offered. There has been a very feeble effort made in this direction in this legislation, but it does not reach the point that I raise. It says this section does not constitute authority to withholding information from the Congress, and that does not cover the point of my objection.

We have had two committees studying this. Hopefully one of these committees will come forward during the 5-minute rule with an amendment to protect your right to make an inquiry for a constituent. Mr. FASCELL. Mr. Speaker, will the gentleman yield?

Mr. GOLDWATER. I yield to the gentleman from Florida.
Mr. FASCELL. I thank the gentleman for yielding.

Of course, the bill does not apply to personal matters at all but to ex parte communications regarding quasi-judicial proceedings. One would not go to a judge and try to twist his arm in the middle of a lawsuit. It is unethical; it is improper. The bill says that we are talking about persons outside of the agency who are contacting people in a "proceeding." We are talking about something in the nature of an adversary proceeding or a quasi-judicial proceeding. We are talking about contracting a person who would be involved in a decisionmaking process. We are not talking about agency staff or personal matters.

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