THE LEGISLATIVE HISTORY OF THE GOVERNMENT IN

THE SUNSHINE ACT-S. 5 (PUBLIC LAW 94-409)

The first sunshine proposal (S. 3881) was introduced by Senator Lawton Chiles (D.-Fla.) on August 4, 1972, and referred to the Senate Committee on Government Operations. A companion bill (H.R. 16450) was offered in the House of Representatives by Representative Dante Fascell (D.-Fla.) on August 17. Patterned after the philosophy behind the Freedom of Information Act (5 U.S.C. 552), the bills provided that “all meetings (including meetings to conduct hearings) of any government agency at which any official action is considered or discussed shall be open to the public" and then set forth four categories of exception: national security matters, internal management questions, situations with a potential for adverse effect upon an individual's character or reputation, or subjects required to be kept confidential under specific statutory authority. The open meetings provisions also extended to congressional committee proceedings. Transcripts of open meeting deliberations were required and judicial remedy was established in the event a dispute arose over the propriety and/or legality of closing a meeting.

Neither House took action on the measures in the 92d Congress. With the opening of the 93d Congress, the measure was again introduced in the House (H.R. 4) by Representative Fascell on January 3, 1973. A modified and expanded version of the original proposal was offered (S. 260) by Senator Chiles and 17 bi-partisan co-sponsors on January 9.2 A version of the enlarged bill was subsequently introduced (H.R. 10000) in the House by Representative Fascell on August 3, and it eventually gained almost 50 co-sponsors from both political parties. Expansion of the original measure included the addition of a policy definition of "national security" as utilized in the bill; more detailed procedure regarding opening and closing meetings of both congressional committees and Executive Branch multimember administrative agencies; inclusion of certain types of law enforcement information, trade secrets, and financial or commercial information as subjects exempt from mandatory disclosure in open meetings; and a new provision prohibiting ex parte communications between agency decisionmakers and all persons outside the agency where the purpose of the contact is discuss the merits of any matter being formally adjudicated by the agency, any rulemaking proceeding or any proceeding to prepare an environmental impact statement.

Referred to the Senate Committee on Government Operations, the Sunshine bill was assigned to the Subcommittee on Reorganization, Research, and International Organizations, chaired by Senator Abraham Ribicoff (D.-Conn.), for consideration. In July 1974, the subcommittee sent a questionnaire to a variety of experts-attorneys, public administrators, political scientists, public interest policy organiza

1 See Congressional Record, v. 118, August 4, 1972 S12794-S12811.

2 See Ibid., v. 119, January 9, 1973: S373-S377.

tions, State officials, editors and journalists-soliciting their views on the bill. These responses were compiled in December and published for use in considering the Sunshine proposal.3

During the early stages of the 2d session of the 93d Congress, the Reorganization Subcommittee, with Senator Chiles as acting Chairman, received testimony on the bill from a number of witnesses. Public officials testifying at that time included Senator Charles Percy (R.-Ill.), Senator William Roth (R.-Del.), Senator Dick Clark (D.-Iowa), Representative Bill Gunter (D.-Fla.), Representative Dante Fascell (D.-Fla.), and Governor Reubin Askew of Florida. Others appearing during the spring hearings included Charles S. Rowe, Bill Mullen, and Theodore S. Serrill, representing the National Newspaper Association; John Gardner and David Cohen, appearing on behalf of Common Cause; pollster Lou Harris; Ron Plesser, a staff attorney with Ralph Nader's Center for the Study of Responsive Law; and Jeanne Malchon, former State president of the League of Women Voters of Florida.

On October 15, the subcommittee heard from agency officials representing the particular views of such agencies as the Interstate Commerce Commission, Civil Aeronautics Board, Securities and Exchange Commission, and Federal Communications Commission. Other witnesses included representatives from the Administrative Conference of the United States, spokesmen from the Radio-TV News Directors Association, Douglas Q. Wickham, Professor of law at the University of Tennessee Law School, and John B. Adams, Dean of the University of North Carolina Journalism School.

In the 94th Congress the legislation was introduced by Senator Chiles with two dozen bi-partisan co-sponsors on January 15, 1975. The bill (S. 5) was first referred to the Subcommittee on Federal Spending Practices, Efficiency and Open Government of the Committee on Government Operations, and subsequently reported by that subcommittee on May 12. The bill was reported (S. Rept. 94-354) by the full committee with amendments by a unanimous vote on July 9.5 Certain procedural requirements contained in the original bill regarding the closing of meetings were modified. In addition, the scope of the bill was modified to cover only those multiheaded agencies headed by officials appointed by the President with the advice and consent of the Senate. Amendments were added specifying additional grounds justifying a closed meeting.

Rather than requiring an agency to maintain a transcript of electronic recording of all its meetings, the bill was amended to require a verbatim transcript only of those meetings closed to the public. Meetings discussing cases in adjudication were exempted from the transcript requirements in all instances. Other amendments pertained to preventing district courts from overturning substantive agency action taken at a meeting improperly closed to the public and an ex parte provision limited to apply only to formal on-therecord agency proceedings.

See U.S. Congress. Senate. Committee on Government Operations. Government in the Sunshine: Responses to Subcommittee Questionnaire. Committee print, 93d Congress, 1st sess. Washington. U.S. Govt. Print. Off.. 1974. 128 pp.

See U.S. Congress. Senate. Committee on Government Operations. Government in the Sunshine. Hearings, 93d Congress, 2d session. May 21 and 22; and October 15, 1974. Washington, U.S. Govt. Print. Off., 1974. 397 p.

U.S. Congress. Senate. Committee on Government Operations. Government in the Sunshine. Washington, U.S. Govt. Print. Off., 1975. 62 p. (94th Congress, 1st session. Senate. Report No. 94-354) [infra, p. 193].

Other provisions clarifying the relationship between the Sunshine bill and the Freedom of Information Act and the Privacy Act were also adopted. Due to the impact of the proposal on congressional procedures and its ex parte communications provision amending the Administrative Procedure Act, the measure was referred to the Committee on Rules and Administration and the Committee on the Judiciary, respectively. No additional hearings were held by either committee.

The Committee on Rules and Administration reported the bill (S. Rept. 94-381) on September 18. By a 8-0 vote, the Committee on Rules and Administration removed the congressional title (title I) of the Sunshine proposal before reporting it, stating that, with regard to open meeting procedure, "in respect to congressional committees such purpose would more properly be achieved by direct amendment of the Standing Rules of the Senate rather than by amendment of the Legislative Reorganization Act of 1946." Title II of the bill was left unchanged. The Committee on Rules and Administration concurrently reported (S. Rept. 94–382), a resolution (S. Res. 9) amending the rules of the Senate regarding open committee meetings, and it was subsequently adopted by that chamber on November 5. The Rules Committee Report was also filed on behalf of the Judiciary Committee which agreed "to report the bill with the reservation of the right to file on the floor of the Senate proposed amendments to this legislation at a later date." On the first day of discussion, it was agreed to treat as original text on the floor the Rules Committee version of the bill in which the congressional title was deleted."

During the course of deliberations on the measure the following day, the bill was passed with an amendment providing that financial regulatory agencies not be required to have open meetings when there is danger of "significant" financial speculation. The previous language used the term "serious" financial speculation. Another technical amendment was agreed to which was intended to conform the legislation to the Administrative Procedure Act. At the conclusion of these deliberations, the Senate approved the bill on a 94-0 roll call vote. In the House, a companion to Senator Chiles' Sunshine proposal (S. 5) was first introduced (H.R. 466) by Representative Don Fuqua (D.-Fla.) on January 14, 1975. A modification of the Chiles bill, devoid of the congressional title, was offered (H.R. 5075) by Representative Dante Fascell (D.-Fla.) on March 18. Later, on September 26, Representative Fascell introduced another version of this legislation (H.R. 9868), reflective of changes in the bill as reported by the Senate Committee on Government Operations.

On October 22, Representative Bella Abzug (D.-N.Y.), Chairwoman of the Subcommittee on Government Information and Individual Rights of the Committee on Government Operations, introduced a revised version of the Fascell measure (H.R. 10315). This proposal and the latter Fascell bill were referred to the House Committee on Government Operations where they were assigned to Representative Abzug's subcommittee for consideration.

U.S. Congress. Senate. Committee on Rules and Administration. Government in the Sunshine Act. Washington, U.S. Govt. Print. Off., 1975. 3 p. (94th Congress, 1st session. Senate. Report No. 94-381) [infra. p. 315].

'See Congressional Record, v. 121. November 5, 1975: S. 19337-S19372 [Infra, p. 318].

Hearings on Sunshine legislation were held by the Subcommittee on Government Information and Individual Rights on November 6 and 12. In addition to a variety of statements and materials submitted for the record, testimony was received from spokespersons for the Association of the Bar for the City of New York, the American Bar Association, Common Cause, and two publications-Advertising Age and the Nashville Tennessean. Representative Fascell made a presentation before the panel, as did officials from the Federal Reserve System, the Securities and Exchange Commission, the Justice Department, the Federal Communications Commission, and the Consumer Product Safety Commission.8

Following the hearings before the Abzug subcommittee, and in response to some of the suggestions made at those hearings, a revised version of the legislation (H.R. 11007) was introduced by Representative Abzug on December 4. The subcommittee marked up the new bill on December 15, 16, and 17, 1975, and January 20 and 21, 1976. The final subcommittee version included a provision overturning a Supreme Court decision (Administrator, FAA v. Robertson, 422 U.S. 255 (1975)) regarding the third exemption of the Freedom of Information Act (5 U.S.C. 552 (b) (3)), so that it would exempt from disclosure only material required to be withheld from the public by a statute establishing particular criteria or referring to particular types of information (the Robertson decision had held that the existing exemption included a statute permitting or requiring withholding, regardless of whether it contained specific criteria therefor).

The subcommittee version was introduced as a clean bill (H.R. 11656) by Representative Abzug and 24 other sponsors from both parties on February 3, 1976. This measure was ordered reported (H. Rept. 94-880, Part I) by the full Committee on Government Operations on March 2 by a 32-7 vote.9

At the direction of the Speaker of the House, the bill was then referred to the Committee on the Judiciary. The Subcommittee on Administrative Law and Governmental Relations held hearings on March 24 and 25.10 Thereafter, certain amendments to the legislation were proposed by this panel. The full Judiciary Committee favorably reported (H. Rept. 94-880, Part II) the proposal, as amended, by a voice vote on April 6.11

The measure was debated under an open rule (H. Res. 1207) in the House on July 28. Prior to adopting the bill by a yea-and-nay vote of 390-5, the chamber agreed to an amendment in the nature of a substitute incorporating all of the recommendations of the panels reporting the proposal. Various other amendments were agreed to, including one eliminating the requirement for transcripts of closed meetings, one applying the bill's exemptions to meetings of advisory com

* See U.S. Congress. House, Committee on Government Operations. Government in the Sunshine. Hearings, 94th Cong., 1st sess. November 6 and 12, 1975. Washington, U.S. Govt. Print. Off., 1975. 565 pp.

C.S. Congress. House. Committee on Government Operations. Government in the Sunshine Act. Washington, U.S. Govt. Print. 40 p. (94th Congress, 2d session. House. Report No. 94-880. Part I) [infra, p. 512].

to See U.S. Congress. House. Committee on the Judiciary. Government in the Sunshine Act. Hearings. 94th Congress. 2d Session. March 24 and 25, 1976. Washington, U.S. Govt. Print. Off.. 1976. 72 pp.

T.S. Congress. House. Committee on the Judiciary. Government in the Sunshine Act. Washington, U.S. Govt. Print. Off., 1976. 48 p. (94th Congress, 2d session. House. Report No. 94-880. Part II) [infra, p. 551].

mittees as well as agencies, and one narrowing somewhat the amendment to the third exemption of the Freedom of Information Act. Subsequently, this passage was vacated, and S. 5 was passed in lieu of the House bill after being amended to contain the language of the House version as enacted.12 A conference was then called on the differing proposals.13

Meeting on August 5, the conference committee, chaired by House Government Operations Committee Chairman Jack Brooks (Ď.-Tex.) and drawn from the membership of the two Committees on Government Operations and the House Committee on the Judiciary, resolved 9 major and 38 minor points of disagreement between the two proposals. 14 Among the principal differences settled were an understanding of "meeting".

The Senate version defined meeting to mean "the deliberations of at least the number of individual agency members required to take action on behalf of the agency where such deliberations concern the joint conduct of disposition of official agency business." The House defined meeting to mean "a gathering to jointly conduct or dispose of agency business by two or more but at least the number of individual agency members required to take action on behalf of the agency." The compromise version defined "meeting" to mean "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 agency business", but not deliberations to take action to open or close a meeting, or to release or withhold information under certain sections of the Act. (The joint statement of the committee of conference noted that the definition of "meeting" is meant to include conference telephone calls if they involve the requisite number of members and otherwise come within the definition.)

The conference also resolved that, unless otherwise provided in the statute, every portion of every meeting of an agency within the scope of the Sunshine Act, including a subdivision, shall be open to public observation. The joint statement of the committee of conference noted that this provision is intended "to guarantee that ample space, sufficient visibility, and adequate acoustics will be provided."

Section 5(b) of the conference substitute amends the third exemption in the Freedom of Information Act, 5 U.S.C. 552(b), to include information "specifically exempted from disclosure by statute (other than section 552b 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."

In considering the Sunshine Act exemption (5 U.S.C. 552b (c) (3)) and accompanying provision amending the comparable Freedom of Information Act exemption (5 U.S.C. 522(b)(3)) pertaining to statutes restricting the disclosure of information, the conference indicated these modifications apply only to a statute that either "requires that the information be withheld from the public in such a manner

12 See Congressional Record, v. 122, July 28, 1976: H7863-H7902. [infra. p. 595]. 13 See Congressional Record, v. 122, July 29, 1976: S. 12839; Ibid., August 3, 1976: H8228. [infra, pp. 727].

14 See Staff Conference Memorandum [infra, p. 773].