1 14 incurred by any other party who substantially prevails in 2 any action brought in accordance with the provisions of 3 subsection (g), (h), or (i) (g) or (h) of this section, except 4 that costs may be assessed against an individual member of 5 6 7 8 an agency only in the ease where the court finds such ageney member has intentionally and repeatedly violated this seetion and against the plaintiff only where the court finds that the suit was initiated by the plaintiff primarily for 9 frivolous or dilatory purposes. In the case of assessment of costs against an agency, the costs may be assessed by the 11 court against the United States. 10 12 "k (j) Each agency subject to the requirements of this 13 section shall annually report to Congress regarding its com14 pliance with such requirements, including a tabulation of the 15 total number of agency meetings open to the public, the 16 total number of meetings closed to the public, the reasons for closing such meetings, and a description of any litigation 18 brought against the agency under this section, including any 19 costs assessed against the agency in such litigation (whether 17 20 or not paid by the agency). 21 2 2 2 8 " (k) Except as specifically provided in this section, 22 nothing herein expands or limits the present rights of any 23 person under section 552 of this title, except that the pro 24 visions of this Act shall govern in the case of any request 15 1 made pursuant to such section to copy or inspect the tran2 scripts or electronic recordings described in subsection (f) 3 of this section. The requirements of chapter 33 of title 44, 4 United States Code, shall not apply to the transcripts and 5 electronic recordings described in subsection (f) of this 6 section. 7 "(m) (1) This section does not constitute authority to 8 withhold any information from Congress, and does not au9 thorize the closing of any agency meeting or portion thereof 10 otherwise required by law to be open. 11 "(n) (m) Nothing in this section authorizes any 12 agency to withhold from any individual any record, includ13 ing transcripts or electronic recordings required by this Act, which is otherwise accessible to such individual under sec15 tion 552a of this title. 16 17 18 "fo (n) In the event that any meeting is subject to the provisions of the Federal Advisory Committee Act as well as the provisions of this section, the provisions of this sec19 tion shall govern.". 20 225 21 (b) The chapter analysis of chapter 5 of title 5, United States Code, is amended by inserting: "552b. Open meetings." 22 immediately below: "552a. Records about individuals.”. 16 1 EX PARTE COMMUNICATIONS 2 SEC. 4. (a) Section 557 of title 5, United States Code, 3 is amended by adding at the end thereof the following new 4 subsection: 5 8 "(d) (1) In any agency proceeding which is subject to 6 subsection (a) of this section, except to the extent required 7 for the disposition of ex parte matters as authorized by law"(A) no interested person outside the agency shall make or cause to be made to any member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of the proceed 9 10 11 12 ing, an ex parte communication relative to the merits of the proceeding; "(B) no member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of the proceeding, shall make or cause to be made to any interested person outside the agency an ex parte communication relative to the merits of the proceeding; "(C) a member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the de cisional process of such proceeding who receives, or hibited by this subsection shall place on the public record of the proceeding: "(i) all such written communications; 17 1 who makes or causes to be made, a communication pro 66 (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; "(D) in the event of a communication prohibited by this subsection and made or caused to be made by a party or interested person, the agency, administrative law judge, or other employee presiding at the hearing may, to the extent consistent with the interests of justice and the policy of the underlying statutes, require the person or party to show cause why his claim or interest in the proceeding should not be dismissed, denied, disregarded, or otherwise adversely affected on account of such violation; and "(E) the prohibitions of this subsection shall apply beginning at such time as the agency may designate, but in no case shall they begin to apply later than the time at which a proceeding is noticed for hearing unless the person responsible for the communication has knowl 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 19 220 (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 |