EXHIBIT 2 SECTION-BY-SECTION ANALYSES OF THE FEDERAL "GOVERNMENT IN THE SUNSHINE ACT" Section 1: Provides that the Act may be cited as the "Government in the Sunshine Act." Section 2: Declares it to be the policy of the United States that the public is entitled to the fullest practicable disclosure concerning the decision making processes of the Federal government. Section 3: Defines the terms "national security" and "person" for purposes of the Act. Title 1: Concerns the hearing and meeting procedures of congressional committees Section 101: Amend the Legislative Reorganization Act of 1946 as applicable to the Senate to establish a basic norm of open meetings by all committees unless a majority of the committee determines on a recorded vote that the matters to be considered or discussed at the meeting will fall within the following narrowly defined exemptions: National security or confidential conduct of foreign relations; Internal committee staff personnel or management matters; Defamation of an individual other than a government officer or employee with respect to his employment (except that in the case of a witness at a hearing, the hearing can be closed only if he requests that it be closed): The identity of informers or enforcement agents or similar sensitive information vital to law enforcement; Information relating to trade secrets or financial information that has been obtained by the Federal government on a confidential basis; information required to be kept secret by federal statute; and information the disclosure of which would injure a person's competitive position. This section would rather provide that committees must normally give 7 days public notice of all meetings; that a complete transcript of each meeting should be prepared and made available to the public for inspection and copying; there may be deleted from the publicly available version of the transcript portions which the committee determines fall within the exemptions specified above. This section further provides that a point of order against a committee vote to close a hearing or delete a portion from the transcript available to the public may be raised by 4 of the members of the committee present. The point of order would be a matter of highest privilege and would be referred to a Select Committee on Meetings, consisting of the President Pro Tempore and the majority and minority leaders. Their findings as to whether the secrecy was justified or not would be subject to vote of the entire Senate. If it were determined that a meeting or portion thereof had been improperly kept secret, the transcript of the meeting or portion would be made publicly available. Section 102: Would impose identical requirements concerning open meetings on House committees. The Select Committee on Meetings would consist of the Speaker and the majority and minority leaders. Section 103: Would impose the same open meeting requirements on conference committees. A Select Conference Committee on Meetings consisting of the Speaker, the President Pro Tempore, and the majority and minority leaders from each House would initially rule on points of order raised against closed meetings or delections from the publicly available transcript of a meeting. Section 104: Provide that no court would have jurisdiction to review any of the votes or rulings pursuant to the above requirements unless a person's constitutional rights were infringed. Title 2: Concerns the decision making process of the administrative agencies in the Federal government. Section 201: Provides that meetings of all multi-member federal agencies at which official action is considered or discussed must normally be open to the public. Such meetings could be closed to the public only if the agency determines by a majority of its entire membership that the matters to be discussed fall within one of the specific exemptions applicable in the case of Congressional committee meetings; or that the meeting would deal with a case of adjudication where the agency is acting in an essentially judicial capacity. The agency would normally be required to give 7 days public notice of all meetings, to make a complete transcript of all meetings, and to make available to the public for inspection and copying the transcript of each meeting. Portions of the meeting transcript consisting of confidential matters falling within the exemptions specified above could be deleted from the copy made available to the public. In addition, each agency subject to the above requirements would be required to publish implementing regulations and annually report to Congress on their compliance with the open meeting requirements. The section would further provide that any person could bring a court action to challenge the agency's implementing regulations or its decision in a particular instance to close a meeting or delete material from the publicly available transcript. The court would in such suits require that matters improperly kept secret be publicly disclosed, and could in its discretion set aside agency action taken or discussed at meetings improperly kept secret and also award attorney's fee to either party to the lawsuit. Section 202: Would apply to all federal administrative agencies with respect to the following types of proceedings: Any case of agency adjudication or rule making on the record which under the Administrative Procedure Act is subject to a requirement of trial-type procedures; Any agency rule making 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 proceeding to prepare an environmental impact statement required under the National Environmental Policy Act. The section deals with any ex parte (outside) communications between an interested person and a member or employee of the agency in such proceedings, and the agency would be required to publish any such ex parte communications on the public record. The prohibition against ex parte communications would become effective at such time as the agency might designate, but in no event later than the time the proceeding in question was publicly noticed or the time that a party to the communication became aware that the proceeding would be so noticed. Each agency subject to the requirements of the section would be required to promulgate implementing regulations. Any person could bring a court action to review the implementing regulations or any alleged improper ex parte communication. The court could require that any improper ex parte communication be made public, and could use its discretion to set aside agency action taken in a proceeding with respect to which the improper communication occurred, and to award attorney's fees to either party. Section 203: Provides that the provisions of Title 2 do not authorize withholding of information from the public and are not authority to withhold information from Congress. The redrafted version of the Federal "Government in the Sunshine Act," while somewhat more lengthly than the first version, S. 3881, retains its essential purposes. The various exemptions from the open meeting requirement for congressional committees and multi-member administrative agencies have been made more specific. In addition, congressional committees and administrative agencies are required to keep transcripts of all meetings and make such transcripts publicly available except for confidential portions falling within one of the specific exemptions. In the case of meetings by congressional committees, the redrafted version of the Act provides an enforcement mechanism for cases where a meeting is claimed to have been improperly closed. One fourth of the members of a committee can challenge the closing of a meeting by raising a point of order which must promptly be referred to a Select Committee on Meetings, consisting of the legislative leadership, for a ruling. The committees' ruling would be subject to the vote of the entire body. The redrafted version of the Act also applies the open meeting requirement to conference committees. As applied to administrative agencies, the open meeting requirement could be enforced by any person in a court action. The redrafted version of the Act also contains an additional requirement, applicable to all federal agencies, that would prohibit all ex parte communications in cases of rule making or adjudication by the agency or the proceedings to prepare an Environmental Impact statement pursuant to the National Environmental Policy Act. This requirement, which could be enforced by court action by any person, would further advance the goal of open government decision making by prohibiting off the record pressures on agencies by interested outside parties. Mr. ROTH. Mr. President, I am very pleased to join the junior Senator from Florida in cosponsoring the "Government in the Sunshine Act." Senator Chiles is doing this country a fine public service in offering this legislation for consideration and debate. I want to point out that this effort is entirely complementary with the resolution that Senator Humphrey and I will introduce later this week to create a new Senate rule requiring committee meetings be open to the public except when a majority of the committee vote to close the meeting for national security reasons or because the reputation of an individual is involved. I feel that if we first put our own House in order, we will be in a much better position to press for the more general antisecrecy legislation embodied in the "Government in the Sunshine Act." I am cosponsoring "Government in the Sunshine Act," not because it represents the whole response to the problem of governmental secrecy, but because it is important to have hearings on a range of different kinds of legislation dealing with both executive and legislative secrecy and with the processes of Government as well as Government docu ments. I am looking forward to participating with Senator Chiles and with our other colleagues on the Committee on Government Operations in studying and debating this antisecrecy legislation, I certainly hope that our committee work on this legislation will be "in the sunshine." Mr. STAFFORD. Mr. President, I am pleased to be included as one of the original cosponsors of the legislation that has been introduced by the Senator from Florida (Mr. Chiles). For some time I have been concerned over the growing evidence of declining public confidence in Government, politicians, and politics. I think one of the major reasons the public is suspicious about Government and politics, particularly at the national level, is that so much of our activity takes place away from public view. For that reason, I am pleased to join as a sponsor of legislation that would require all meetings of Federal agencies and congressional committees be open to the public, with only certain limited exceptions. This measure would permit the public to assume its rightful role as a full working partner in the operations of its Government. Too much of our activity is carried on in shadows that block the view of the public, but which build the suspicion of the public. I think we should eliminate those shadows with the bright light of public disclosure. I intend, later in this session, to reintroduce the Open Government Act, which would require full and complete financial disclosure of all lobbying activities related to the Congress. And, I hope to have the opportunity to give my support once again to legislation that would require full and public disclosure of the financial status of Members of Congress and their senior staff members. Each of these measures is designed to open up Government and politics to public view and I am delighted that the Senator from Florida, Mr. Chiles, is pressing ahead with his legislation. [From the Congressional Record-Senate, Jan. 15, 1975] (S 59-S 64) INTRODUCTION OF S. 5 BY SENATOR LAWTON CHILES S. 5. A bill to provide that meetings of Government agencies and of congressional committees shall be open to the public, and for other purposes. Referred to the Committee on Government Operations. Mr. CHILES. Mr. President, in January 1973, I introduced S. 260, the Federal Government in the Sunshine Act. The purpose of this bill is to provide for more public access to the work of the legislative and executive branches of Government by making most meetings of congressional committees and Federal agencies open to all interested persons. Since the introduction of the bill, we have had a conference cosponsored by Common Cause and two rounds of hearings at which a number of agency officials and Members of Congress testified. After each discussion on the bill, we considered the many thoughtful suggestions and made revisions to reflect the most discerning of them. The bill that I am reintroducing today as S. 5, is, therefore, a much more refined bill, a bill which has been carefully examined by many of the people who will be affected by its passage. Support for the bill within the Senate has been encouraging. The concept of opening up congressional markup sessions and conferences has been overwhelmingly accepted by the Democratic conference. Last Congress, we had 26 cosponsors for the bill. This Congress we hope to have even more. Secrecy in Government has become synonymous, in the public's mind, with deception by the Government. While some matters must be discussed in closed session, these are few and are specifically provided for in the bill, to insure that the bill itself will not become a shield behind which Government can hide its deliberations from the people. The experience we have had with open meetings in the 93d session shows that committees can work as effectively or more effectively in the public. For the past 2 years the Government Operations Committee, the Banking, Housing, and Urban Affairs Committee, and the Interior Committee have held open markup sessions. They have dealt effectively and openly with such important, and often controversial, legislation as the Congressional Budget and Impoundment Control Act of 1973, the Energy Reorganization Act of 1973, Federal Regulation of Lobbying Amendments, the Housing and Community Development Act of 1974, control of export-import banking, energy allocation, land use policy, Executive privilege, consumer protection, surface mining, and mineral leasing. I hope that the Senate will act on the bill this Congress. With the public so keenly aware these days of the things that can go wrong in the governmental decisionmaking process, it is incumbent upon the Senate to show them that we are willing to eliminate the practices which foster wrong decisions. |