Government in the Sunshine Act

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5 U.S.C. § 552b (2012); enacted by Pub. L. No. 94-409, 90 Stat. 1241, Sept. 13, 1976; amended by Pub. L. No. 104-66, Title III § 3002, 109 Stat. 707, 734, Dec. 21, 1995.

Overview

Section 3 of the Government in the Sunshine Act (Sunshine Act) added a new § 552b, titled “Open Meetings,” to Title 5 of the U.S. Code. Section 3 requires, in general, that meetings of each federal agency headed by a collegial body, a majority of whose members are appointed by the President with the advice and consent of the Senate, shall be open to public observation. Approximately 50 federal agencies are subject to the Government in the Sunshine Act, including the major independent regulatory commissions, such as the Securities and Exchange Commission, Federal Trade Commission, Federal Communications Commission, Consumer Product Safety Commission, and National Labor Relations Board. The right of observation provided by the Sunshine Act does not include any right to participate in the agency’s deliberations. The Sunshine Act provides certain exemptions from the open meeting requirement and prescribes in detail the procedures that the agency must follow to invoke an exemption and close a meeting.

Summary

The principal provisions of the Sunshine Act may be summarized briefly. Subsection (a) defines the words “agency,” “meeting,” and “member.” Subsection (b) declares a presumption in favor of open meetings. Subsection (c) allows an agency to close or withhold information about a meeting or portion of a meeting if the agency determines that the meeting or information, if released, would likely disclose information protected from disclosure under one of several exemptions.  These exemptions are permissive, not mandatory, and subsection (c) also provides that agency meetings otherwise exempt shall be open “where the agency finds that the public interest [so] requires.”

Exemptions

The exemptions in subsection (c) generally parallel those in the Freedom of Information Act (FOIA) (5 U.S.C. § 552). There is, however, an important exception. There is no exemption in the Sunshine Act that parallels FOIA’s fifth exemption for interagency and intra-agency memoranda and letters. This is because, while FOIA recognizes the legitimate government interest in protecting the agency deliberative process as such, the Sunshine Act aims at maximum exposure of that process, at least at the collegial level. See Richard K. Berg, Stephen Klitzman & Gary Edles, An Interpretive Guide to the Government in the Sunshine Act 67 (ABA, 2d ed. 2005). This Guide is the authoritative source on the Sunshine Act.

On the other hand, the Sunshine Act does have two important exemptions that lack counterparts in FOIA and that protect the deliberative process in certain defined circumstances. Exemption 9 permits those agencies that regulate currencies, securities, commodities, or financial institutions to close meetings to protect information that, if disclosed, would lead to significant speculation or significantly endanger the stability of financial institutions. More broadly, it permits any agency to close a meeting to prevent disclosure of information that would be likely to frustrate the implementation of a proposed agency action. Exemption 10 permits closure of meetings that concern agency participation in pending or anticipated litigation or the disposition by the agency of particular cases involving formal (but not “informal”) adjudication.

Procedures for Closing Meetings

Subsections (d), (e), and (f) prescribe the procedures agencies must follow in closing meetings, announcing and changing meetings, and withholding or releasing substantive information regarding such meetings. Under subsection (d)(1), agencies may decide to close meetings or withhold information about meetings only by recorded majority vote of the entire membership of the agency. Subsection (d)(2) allows a “person whose interests may be directly affected by a portion of a meeting” to request closure based on exemptions (5), (6), or (7). The agency must vote on the request only “upon request of any one of its members.” Subsection (d)(3) requires that, within one day of any vote to close or to withhold information about a meeting taken under subsections (d)(1) or (d)(2), the agency must “make publicly available” a written copy of the vote of each member. If the vote is to close or to withhold information, the agency must also make available “a full written explanation” of the closing and a list of all expected attendees and their affiliations. Subsection (d)(4) allows an agency, a majority of whose meetings may be closed under exemptions (4), (8), (9)(A), or (10), to close its meetings by expedited procedures and to dispense with some of the procedural requirements of subsections (d)(1), (d)(3), and (e).

Publicizing Meetings

Subsection (e)(1) requires that the agency publicly announce, at least one week prior to the meeting, its time, place, and subject matter; whether it is to be open or closed; and the name and telephone number of an agency contact person to provide additional information. The subsection also permits the agency to provide less than seven days’ notice of a meeting, provided a majority of the membership determines by recorded vote “that agency business requires” less notice, and the agency makes the requisite public announcement “at the earliest practicable time” and, in the case of a change in subject matter or open or closed status, a majority recorded vote is cast. Subsections (e)(1) and (e)(2) require that information about the time, place, and subject matter of meetings, as well as changes in the time or place of meetings, must be submitted for publication in the Federal Register. Furthermore, agencies are urged to use other means to ensure that the public is fully informed of public announcements, including posting notices on agency websites or distributing them to a listserv or mailing list.

Recordkeeping

Subsection (f)(1) requires that, for every meeting closed under one or more of the exemptions of subsection (c), the general counsel or chief legal officer of the agency must certify that the meeting may properly be closed. The agency must retain a copy of the certification and a statement from the presiding officer of the meeting stating the time and place of the meeting and listing the persons actually present. The agency must also maintain a complete verbatim transcript or electronic recording of all closed meetings, except that it may instead maintain detailed minutes of any meeting closed under exemptions (8), (9)(A), or (10). Subsection (f)(2) requires the agency to make “promptly available” for public inspection and copying a copy of the transcript, recording, or minutes, except for information exempted and withheld pursuant to subsection (c). The agency is also required under subsection (f)(2) to maintain for at least two years a complete verbatim copy of the transcript, recording, or minutes. Subsection (g) provides for the issuance of agency rules to implement the Sunshine Act. ACUS was originally given the responsibility for consulting with agencies prior to their issuance of regulations to implement the Sunshine Act.

Judicial Review

Subsection (h) provides for judicial review of agency decisions to close meetings. Such decisions may be challenged either in a separate proceeding in district court (subsection (h)(l)) or as part of a proceeding for review of the agency action taken at the meeting (subsection (h)(2)). In proceedings under subsection (h)(1), courts are prohibited from reversing the agency action simply because it was taken at a meeting that was improperly closed. In proceedings under subsection (h)(2), there is no such prohibition, but the legislative history strongly suggests that courts should not reverse agency action merely because it violated the Sunshine Act, and in fact no court has ever reversed an agency action for such a violation. Thus, whether the proceeding is under subsection (h)(1) or subsection (h)(2), the relief available is likely to be limited to allowing access to the transcript of the meeting and providing injunctive relief against future violations. In addition, under subsection (i) a successful plaintiff may be entitled to an award of attorney fees.

Reporting

Subsection (j) details the reporting requirements to Congress. Each agency under this subsection must report annually to Congress

  1. the changes in policy and procedure that the agency has implemented the year prior;
  2. the number of meetings held, the exemptions applied to closed meetings, and the days of public notice given concerning those closed meetings;
  3. a description of litigation or complaints received concerning the implementation of section 552(b); and
  4. an explanation of any changes in law that have affected the responsibilities of the agency under this section.

Legislative History

Senate

The legislation that was to become the Government in the Sunshine Act was first introduced in the 92d Congress on August 4, 1972, by Senator Lawton Chiles of Florida as S. 3881. No action was taken on the bill, and Senator Chiles reintroduced the bill in the 93d Congress on January 9, 1973, as S. 260.

The bill was referred to the Subcommittee on Reorganization, Research and International Organizations of the Senate Committee on Government Operations, where it underwent several revisions. In 1974, the subcommittee held three days of hearings on Committee Print No. 3 (Hearings on S.260, Before the Subcomm. on Reorgs., Research and Int’l Orgs. of the S. Comm. on Gov’t Operations, 93d Cong. (1974)).

Subsequent to the October 1974 hearing, the Subcommittee prepared Committee Print No. 4 of S. 260, which was introduced by Senator Chiles on January 15, 1975, in the 94th Congress as S. 5.

On July 31, 1975, without further hearings, the Committee on Government Operations reported S. 5 with amendments. S. Rep. No. 94-354 (1975). As reported, the bill consisted of two titles, title I, meetings of congressional committees, and title II, agency meetings and ex parte communications.

Title I was referred to the Senate Committee on Rules and Administration, which on September 18, 1975 reported out S. 5 and recommended that title I be deleted from the bill. S. Rep. No. 94-381 (1975).

On November 5, 1975, title I was deleted on the floor of the Senate. On November 6, 1975, S. 5, as amended, was considered and passed without significant further amendment by a vote of 94-0.

House

A bill identical to title II of S. 5, as reported by the Senate Committee on Government Operations, was introduced in the House of Representatives by Representative Dante Fascell on September 26, 1975, as H.R. 9868. On October 22, 1975, Representative Bella Abzug introduced H.R. 10315, an amended version of title II of S. 5. The House versions were referred sequentially to the committees on Government Operations and the Judiciary. On November 6 and 12, 1975, the Subcommittee on Government Operations Committee held hearings on H.R. 10315 and H.R. 9868.

On February 3, 1976, a clean bill was introduced in the House by Representatives Abzug, Fascell, and others as H.R. 11656, and it was reported out by the House Government Operations Committee on March 8, 1976. H.R. Rep. No. 94-880, pt. I (1976). On March 24 and 25, 1976, the Subcommittee on Administrative Law and Governmental Relations of the House Judiciary Committee held hearings on H.R. 11656, and on April 8, 1976, the House Judiciary Committee reported H.R. 11656 with amendments. H.R. Rep. No. 94-880, pt. II (1976). On July 28, 1976, the House considered and passed H.R. 11656, with floor amendments, and then took up S. 5 and amended it to substitute the text of the House bill. S. 5 was then passed by a vote of 390-5 and sent to a Senate-House Conference.

Conference Committee and Enactment

On August 26 and 27, 1976, the report of the conference committee was filed, respectively, in the House and Senate. H.R. Rep. No. 94-1441 (1976); S. Rep. No. 94-1178 (1976). On August 31, 1976, the report was adopted by voice vote in the Senate and by a vote of 384-0 in the House. On September 13, 1976, President Ford signed the bill into law, to go into effect March 12, 1977. Pub. L. No. 94-409.

On May 11, 1995, the Federal Reports Elimination and Sunset Act of 1995 (Pub. L. No. 104-66) was introduced in the Senate by Senator John McCain (R-AZ). It provided for a modification or elimination of certain federal reporting requirements of specified federal departments and agencies. It also terminated certain periodic reporting requirements. It was signed into law on December 21, 1995, and amended subsection (j) of the Sunshine Act.

Bibliography

Legislative History and Congressional Documents

  • Government in the Sunshine Act—S.5 (Public Law 94-409—Source Book: Legislative History, Texts and Other Documents), 94th Cong. (1976), published jointly by the S. and H. Comm. on Gov’t Operations.
  • Hearings on S.260, Before the Subcomm. on Reorgs., Research and Int'l Orgs. of the S. Comm. on Gov't Operations, 93d Cong. (1974).
  • Hearing on Government in the Sunshine Act Implementation, Before the Subcomm. on Admin. Law and Gov’tal Relations of the H. Comm. on the Judiciary, 95th Cong. (1977).
  • Hearings on Oversight of the Government in the Sunshine Act, Pub. L. No. 94-409, Before the Subcomm. on Fed. Spending Practices and Open Gov’t of the S. Comm. on Gov’tal Affairs, 95th Cong. (1978).
  • Hearing on Nuclear Regulatory Commission Sunshine Act Regulations, Before the Subcomm. on Energy Conservation and Power of the H. Comm. on Energy and Commerce, 99th Cong. (1985).
  • Hearings on Oversight of the Government in the Sunshine Act, Before the Subcomm. on Fed. Spending, Budget, and Accounting, 100th Cong. (1988).
  • Government in the Sunshine Act: History and Recent Issues, S. Rep. No. 101-54 (1989).
  • Hearing on Federal Information Policy Oversight, Before the Subcomm. on Gov’t Management, Information, and Technology of the H. Comm. on Gov’t Reform and Oversight, 104th Cong. (1996).

ACUS Recommendations

Books and Articles

  • David A. Barrett, Facilitating Government Decision Making: Distinguishing Between Meetings and Nonmeetings Under the Federal Sunshine Act, 66 Tex. L. Rev. 1195 (1988).
  • Jennifer A. Bensch, Seventeen Years Later: Has Government Let the Sun Shine In?, 61 Geo. Wash. L. Rev. 1475 (1992).
  • Richard K. Berg, Stephen Klitzman & Gary Edles, An Interpretive Guide to the Government in the Sunshine Act (ABA, 2d ed. 2005).
  • Kathy Bradley, Note, Do You Feel the Sunshine? Government in the Sunshine Act: Its Objectives, Goals, and Effect on the FCC and You, 49 Fed. Comm. L. J. 473 (1997).
  • Reeve T. Bull, The Government in the Sunshine Act in the 21st Century (June 10, 2014) (report to ACUS).
  • Nathaniel E. Castellano, Where the Sunshine Meets the Shade: Using FOIA Exemption 4 to Protect Confidential Compliance Information After the 2016 FOIA Improvement Act, 46 Pub. Cont. L.J. 589 (2017).
  • James H. Cawley, Sunshine Law Overexposure and the Demise of Independent Agency Collegiality, 1 Widener J. Pub. L. 43 (1992).
  • Justin Hurwitz, Blacklining Editorial Privilege, 23 Mich. Telecomm. & Tech. L. Rev. 149 (2016).
  • Michael A. Lawrence, Finding Shade From the Government in the Sunshine Act: A Proposal to Permit Private Informal Background Discussions at the United States International Trade Commission, 45 Cath. U. L. Rev. 1 (1995).
  • David B. Marblestone, The Relationship Between the Government in the Sunshine Act and the Federal Advisory Committee Act, 30 Fed. B. J. 65 (1977).
  • Randolph May, Reforming the Sunshine Act, 49 Admin. L. Rev. 415 (1997).
  • James T. O’Reilly & Gracia M. Berg, Stealth Caused by Sunshine: How Sunshine Act Interpretation Results in Less Information for the Public About the Decision-Making Process of the International Trade Commission, 36 Harv. Int’l L. J. 425 (1995).
  • Report and Recommendation by the Special Committee to Review the Government in the Sunshine Act, 49 Admin. L. Rev. 421 (1997)
  • Robert W. Sloat, Government in the Sunshine Act: A Danger of Overexposure, 14 Harv. J. on Legis. 620 (1977).
  • Stuart M. Statler, Let the Sunshine In?, 67 A.B.A. J. 573 (1981).
  • Larry Thomas, The Courts and the Implementation of the Government in the Sunshine Act, 37 Admin. L. Rev. 259 (1985).
  • Thomas H. Tucker, Commentary, “Sunshine”—The Dubious New God, 32 Admin. L. Rev. 537 (1980).
  • David Welborn, William Lyons & Larry Thomas, Implementation and Effects of the Federal Government in the Sunshine Act (June 1984) (report to ACUS).

Significant Case Law

  • FCC v. ITT World Commc’ns, 466 U.S. 463 (1984), held that the definition of “meeting” under the Sunshine Act did not include gatherings of agency members to receive information and that international consultative sessions were not covered by the Sunshine Act.
  • Nat. Res. Def. Council, Inc. v. NRC, 216 F.3d 1180 (D.C. Cir. 2000), held that the NRC’s definition of “meeting” adopted by regulation for purposes of the Government in the Sunshine Act, as deliberations of a quorum of commissioners where such deliberations “are sufficiently focused on discrete proposals or issues as to cause or to be likely to cause the individual participating members to form reasonably firm positions regarding matters pending or likely to arise before the agency,” being that of the Supreme Court in the ITT case, was not invalid as contrary to the Sunshine Act or as fatally undermining it. The court further opined that the Supreme Court’s definition was authoritative and not dictum, even though there was an independent basis for its decision.
  • Nat. Res. Def. Council, Inc. v. Def. Nuclear Facilities Safety Bd., 969 F.2d 1248 (D.C. Cir. 1992), upheld agency regulation under the Sunshine Act that interpreted agency statute as permitting closure of meetings under exemption 3.
  • Energy Research Found. v. Def. Nuclear Facilities Safety Bd., 917 F.2d 581 (D.C. Cir. 1990), held that the Board in question is an “agency” for purposes of the Government in the Sunshine Act (and the FOIA).
  • Clark-Cowlitz Joint Operating Agency v. FERC, 798 F.2d 499 (D.C. Cir. 1986), held that where a meeting is closed pursuant to exemption 10 of the Sunshine Act, the need for confidentiality may survive the termination of the proceedings that were the subject of agency discussion and that the agency’s determination that the public interest does not require the opening of a meeting eligible for closure is not subject to judicial review.
  • Rushforth v. Council of Econ. Advisers, 762 F.2d 1038, 1039 n.3, 1043 (D.C. Cir. 1985), held that although plaintiff has standing to allege Sunshine Act violation, Council of Economic Advisers is not an “agency” for purposes of the Sunshine Act, since it does not qualify as an agency under FOIA.
  • Common Cause v. NRC, 674 F.2d 921 (D.C. Cir. 1982), held that exemption 9(b) does not cover meetings to consider the agency’s budget proposals.
  • Pacific Legal Found. v. Council on Envtl. Quality, 636 F.2d 1259 (D.C. Cir. 1980), held that the CEQ is covered by the Sunshine Act.
  • Commc’ns Sys., Inc. v. FCC, 595 F.2d 797 (D.C. Cir. 1978), held that agencies are not precluded by the Sunshine Act from disposing of matters through notation voting rather than at meetings.
  • Public Citizen v. Nat’l Econ. Comm’n, 703 F. Supp. 113 (D.D.C. 1989), held that exemption 9(b) was not available as the basis for closing a meeting to facilitate candid discussion (the case involves comparable exemptions under the Federal Advisory Committee Act, 5 U.S.C. app. II, § 10(d) (1988)).

Other Documents

  • Resolution approved by the American Bar Association House of Delegates, Report No. 100 (Feb. 16–17, 1987) (proposing guidelines to federal agencies and courts with respect to the interpretation of the word “meeting”).
  • Eunice A. Eichelberger, Availability of Judicial Review of Agency Compliance with Sunshine Act (5 U.S.C.A. § 552b(g) and (h)), 84 A.L.R. Fed. 251.
  • Eunice A. Eichelberger, Construction and Application of Exemptions Under 5 U.S.C.A. § 552b(c) to Open Meeting Requirements of Sunshine Act, 82 A.L.R. Fed 465.
  • Kevin W. Brown, What Is an “Agency” Within the Meaning of Federal Sunshine Law (5 USC 552b)?, 68 A.L.R. Fed. 842.

Agency Regulations

Statutory Provisions

Government in the Sunshine Act

Title 5 U.S. Code

§ 552b. Open meetings