as to leave no discretion on the issue, or (B) Establishes particular criteria for withholding or refers to particular types of information to be withheld." ... The conferees intend this language to overrule the decision of the Supreme Court in Administrator, FAA v. Robertson, 422 U.S. 255 (1975), which dealt with section 1104 of the Federal Aviation Act of 1958 (49 U.S.C. 1504). Another example of a statute whose terms do not bring it within this exemption is section 1106 of the Social Security Act (42 U.S.C. 1306).15 In the matter of transcripts, recordings, and minutes of meetings, the conference substitute provides that transcripts, verbatim recordings, or in some cases detailed minutes, must be made of all meetings closed to the public. According to the Joint Statement of the Committee of Conference, the Act: requires that before a meeting may be closed the General The agency shall make a verbatim transcript or electronic Transcripts, recordings, or minutes of meetings governed by the Sunshine Act and not exempt from disclosure by the Act must be made promptly available to the public. The statement of managers provided: Copies of the nonexempt portions of the transcript, or minutes, or a transcription of the recording disclosing the identity of each speaker, must be furnished to any person at the actual cost of duplication or transcription. The complete transcript, minutes, or recording of a closed meeting is to be maintained by the agency for at least two U.S. Congress. Senate, Committee of Conference. Government in the Sunshine, Washington, U.S. Govt. Print. Off., 1976, 94th Congress, 2d session. Senate. Report No. 94-1178, p. 14. [an identical version of the conference report was filed in the House as H. Rept. 94 1441] [infra. p. 783-812]. 1 Ibid., pp. 19-20 [infra. p. 801-802]. years after the meeting or one year after the conclusion of the The conference reconciled differences on the issue of attorney fees by adopting a provision granting the courts the authority "to assess against any party reasonable attorney fees and other litigation costs reasonably incurred by any other party who substantially prevails" in an action taken under the Sunshine Act.18 Costs may be assessed against a plaintiff only when such a suit has been instituted for frivolous or dilatory purposes. Assessments against an agency may be drawn from the Treasury of the United States. The conferees dropped a Senate provision that would have made an agency commissioner personally liable for the expenses of litigation where the commissioner was found to have violated the Act intentionally and repeatedly. 19 The conference report was filed in the House (H. Rept. 94-1441) on August 26 and in the Senate (S. Rept. 94-1178) the following day. On August 31, the House, on the motion of Representative Jack Brooks (D.-Tex.) Chairman of the House Government Operations Committee, agreed to the conference report by a 384-0 yea-and-nay vote and the Senate agreed to it by voice vote, clearing the proposal for the President's signature.20 The President signed the bill (P.L. 94–409) on September 13, 1976.21 17 Ibid., p. 20 [infra, p. 802]. 18 See Alyeska Pipeline Service Company v. Wilderness Society, 421 U.S. 240 (1975). 19 See Congressional Record, v. 122, August 26, 1976: H9137-H9145; Ibid. ; August 27, 1976 S14709 [813-827]. 20 See Ibid., August 31, 1976; H9258-H9262, S15043-S15045 [infra, pp. 813-827]. 21 90 Stat. 1241 [infra, pp. 8-15]; See Weekly Compilation of Presidential Documents, v. 12, September 20, 1976: 1333-1334 [infra, pp. 831-832]. Public Law 94-409 94th Congress, S. 5 September 13, 1976 An Act To provide that meetings of Government agencies shall be open to the public, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may Government be cited as the "Government in the Sunshine Act". DECLARATION OF POLICY SEC. 2. It is hereby declared to be the policy of the United States that the public is entitled to the fullest practicable information regarding the decisionmaking processes of the Federal Government. It is the purpose of this Act to provide the public with such information while protecting the rights of individuals and the ability of the Government to carry out its responsibilities. OPEN MEETINGS SEC. 3. (a) Title 5, United States Code, is amended by adding after section 552a the following new section: ❝g 552b. Open meetings in the Sunshine Act. 5 USC 552b note. 5 USC 552b note. 5 USC 552b. Definitions. "(1) the term 'agency' means any agency, as defined in section 552(e) of this title, headed by a collegial body composed of two 5 USC 552. or more individual members, a majority of whom are appointed to such position by the President with the advice and consent of the Senate, and any subdivision thereof authorized to act on behalf of the agency; "(2) the term 'meeting' means the deliberations of at least the number of individual agency members required to take action on behalf of the agency where such deliberations determine or result in the joint conduct or disposition of official agency business, but does not include deliberations required or permitted by subsection (d) or (e); and "(3) the term 'member' means an individual who belongs to a collegial body heading an agency. (b) Members shall not jointly conduct or dispose of agency business other than in accordance with this section. Except as provided in subsection (c), every portion of every meeting of an agency shall be open to public observation. "(c) Except in a case where the agency finds that the public interest requires otherwise, the second sentence of subsection (b) shall not apply to any portion of an agency meeting, and the requirements of subsections (d) and (e) shall not apply to any information pertaining to such meeting otherwise required by this section to be disclosed to the public, where the agency properly determines that such portion or portions of its meeting or the disclosure of such information is likely to "(1) disclose matters that are (A) specifically authorized under criteria established by an Executive order to be kept secret in the 90 STAT. 1241 5 USC 552. 5 USC 554. Pub. Law 94-409 - 2 September 13, 1976 interests of national defense or foreign policy and (B) in fact properly classified pursuant to such Executive order; "(2) relate solely to the internal personnel rules and practices of an agency; "(3) disclose matters specifically exempted from disclosure by statute (other than section 552 of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld: "(4) disclose trade secrets and commercial or financial information obtained from a person and privileged or confidential; "(5) involve accusing any person of a crime, or formally censuring any person: "(6) disclose information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy; "(7) disclose investigatory records compiled for law enforcement purposes, or information which if written would be contained in such records, but only to the extent that the production of such records or information would (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication, (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source, (E) disclose investigative techniques and procedures, or (F) endanger the life or physical safety of law enforcement personnel; "(8) disclose information contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; "(9) disclose information the premature disclosure of which would "(A) in the case of an agency which regulates currencies, securities, commodities, or financial institutions, be likely to (i) lead to significant financial speculation in currencies, securities, or commodities, or (ii) significantly endanger the stability of any financial institution; or "(B) in the case of any agency, be likely to significantly frustrate implementation of a proposed agency action, except that subparagraph (B) shall not apply in any instance where the agency has already disclosed to the public the content or nature of its proposed action, or where the agency is required by law to make such disclosure on its own initiative prior to taking final agency action on such proposal; or "(10) specifically concern the agency's issuance of a subpena, or the agency's participation in a civil action or proceeding, an action in a foreign court or international tribunal, or an arbitration, or the initiation, conduct, or disposition by the agency of a particular case of formal agency adjudication pursuant to the procedures in section 554 of this title or otherwise involving a determination on the record after opportunity for a hearing. 80-459 O-77-2 90 STAT. 1242 September 13, 1976 - 3 Pub. Law 94-409 "(d) (1) Action under subsection (c) shall be taken only when a Recorded majority of the entire membership of the agency (as defined in sub- voting. section (a) (1)) votes to take such action. A separate vote of the agency members shall be taken with respect to each agency meeting a portion or portions of which are proposed to be closed to the public pursuant to subsection (c), or with respect to any information which is proposed to be withheld under subsection (c). A single vote may be taken with respect to a series of meetings, a portion or portions of which are proposed to be closed to the public, or with respect to any information concerning such series of meetings, so long as each meeting in such series involves the same particular matters and is scheduled to be held no more than thirty days after the initial meeting in such series. The vote of each agency member participating in such vote shall be recorded and no proxies shall be allowed. "(2) Whenever any person whose interests may be directly affected by a portion of a meeting requests that the agency close such portion to the public for any of the reasons referred to in paragraph (5), (6), or (7) of subsection (c), the agency, upon request of any one of its members, shall vote by recorded vote whether to close such meeting. "(3) Within one day of any vote taken pursuant to paragraph (1) Copies, or (2), the agency shall make publicly available a written copy of such availability. vote reflecting the vote of each member on the question. If a portion of a meeting is to be closed to the public, the agency shall, within one day of the vote taken pursuant to paragraph (1) or (2) of this subsection, make publicly available a full written explanation of its action closing the portion together with a list of all persons expected to attend the meeting and their affiliation. "(4) Any agency, a majority of whose meetings may properly be Meeting closed to the public pursuant to paragraph (4), (8), (9) (A), or (10) closure, of subsection (c), or any combination thereof, may provide by regula- regulation. tion for the closing of such meetings or portions thereof in the event that a majority of the members of the agency votes by recorded vote at the beginning of such meeting, or portion thereof, to close the exempt portion or portions of the meeting, and a copy of such vote, reflecting the vote of each member on the question, is made available to the public. The provisions of paragraphs (1). (2), and (3) of this subsection and subsection (e) shall not apply to any portion of a meet ing to which such regulations apply: Provided, That the agency shall, Public except to the extent that such information is exempt from disclosure announcement. under the provisions of subsection (e), provide the public with public announcement of the time, place, and subject matter of the meeting and of each portion thereof at the earliest practicable time. "(e) (1) In the case of each meeting, the agency shall make public Scheduling, announcement, at least one week before the meeting, of the time, place, public and subject matter of the meeting, whether it is to be open or closed to announcement. the public, and the name and phone number of the official designated by the agency to respond to requests for information about the meeting. Such announcement shall be made unless a majority of the members of the agency determines by a recorded vote that agency business requires that such meeting be called at an earlier date, in which case the agency shall make public announcement of the time, place, and subject matter of such meeting, and whether open or closed to the public, at the earliest practicable time. (2) The time or place of a meeting may be changed following the Scheduling public announcement required by paragraph (1) only if the agency changes, publicly announces such change at the earliest practicable time. The public announcement. 90 STAT. 1243 |