Government in the Sunshine Act (1976)

Gary J. Edles,Richard K. Berg, andStephen H. Klitzman

Excerpt from the Government in the Sunshine Act

The Government in the Sunshine Act is based on the policy that "the public is entitled to the fullest practicable information regarding the decisionmaking processes of the Federal Government." The purpose of the act is "to provide the public with such information while protecting the rights of individuals and the ability of the Government to carry out its responsibilities."

The Government in the Sunshine Act (P. L. 94-409, 90 Stat. 1241) requires that meetings of federal agencies with multiple members—agencies headed by a collegial body, a majority of whose members are appointed by the president with the advice and consent of the Senate—must be open to public observation. More than sixty agencies, such as the Federal Communications Commission and the Securities and Exchange Commission, are subject to the law. But key government entities headed by a single individual, such as the cabinet departments, are not.

EXEMPTIONS

The act sets forth ten specific grounds, called "exemptions," on which meetings may be closed and information regarding such meetings withheld from the public. Six of these exemptions were derived from, and are similar to, those contained in the Freedom of Information Act (FOIA). For example, agencies may close meetings that address classified information, that would invade an individual's personal privacy, or that involve law enforcement information. An important exemption is for meetings held to discuss adjudication of particular cases within the agency or pending or anticipated court litigation.

PROCEDURES

The statute also prescribes specific procedures that agencies must follow in announcing and changing meetings, closing meetings, and withholding substantive information regarding meetings. When meetings are closed, the agency must maintain a transcript, electronic recording, or minutes of the meeting. The right of observation granted by the act does not include any right to participate in the agency's deliberations.

Members of the public can enforce the statute's requirements by bringing an action in a federal court. A court can order release of the transcript, recording, or minutes of a meeting that was improperly closed. The act also allows a court to award "reasonable attorneys fees and other litigation costs" from the government if a party "substantially prevails" in the action.

BACKGROUND

The constitutional basis of the act is Congress's right to control the procedures of the agencies it has created. Beyond that, the House Committee on Governmental Operations observed that "the basic premise of the Sunshine legislation is that, in the words of [the] Federalist [Papers] No. 49, 'the people are the only legitimate foundation of power, and it is from them that a constitutional charter ... is derived. Government is and should be the servant of the people and it should be fully accountable to them for the actions which it supposedly takes on their behalf'" (H.R. Rep. No. 94-880 [Part 1], 94th Cong., 2d Sess. 2 [1976]).

The Government in the Sunshine Act was the last in a quartet of "open government" statutes that included the Freedom of Information Act in 1966, the Federal Advisory Committee Act in 1972, and the Privacy Act in 1974. A bill that evolved into the Government in the Sunshine Act was first introduced in Congress by Senator Lawton Chiles of Florida in 1972. After extensive consideration in one Senate committee, two House committees, and a Senate-House Conference committee, the bill was passed with near unanimity and signed into law on September 13, 1976.

EXPERIENCE UNDER THE ACT

Agencies now follow the act's requirements as a matter of course. They have implemented the statute in ways that have not seriously compromised their ability to manage their business. At the same time, the segments of the public most affected by the act—primarily the media, public interest organizations, and the regulated sector—find that they can monitor agency operations and understand the agency decision-making process more easily than they could in the pre-Sunshine Act era.

However, two aspects of the act's implementation have remained controversial. The first is the definition of the term "meeting," because the law requires that only "meetings" must be open to public observation. The definition of "meeting" consists of three elements. First, a meeting must include at least the number of agency members required to take action on behalf of the agency, in other words, a quorum. Second, the required number of members must be in a position to exchange views. The use of the word "joint" in the act is intended to exclude instances, for example, where an agency member gives a speech concerning agency business and other members are in the audience. Finally, a meeting must consist of "deliberations [that] determine or result in the joint conduct or disposition of official agency business." This is an ambiguous concept. On one hand, it is clear that not every mention of agency business turns a gathering of members into a meeting. On the other hand, the term "meeting" applies to more sessions than the one at which the collegial body finally and formally resolves an issue or makes a decision.

The definition of "meeting" was squarely at issue in FCC v. ITT World Communications (1984), the one case in which the U.S. Supreme Court interpreted the language of the statute. The Court determined that a "meeting" occurs only where a quorum of members actually conducts or disposes of (resolves) official agency business. So informal background discussions that simply clarify issues or expose varying views do not rise to the level of a "meeting." Similarly, discussions designed only to implement decisions already reached do not constitute a meeting subject to the act.

The second controversial aspect of the act's implementation concerns the collegiality that is supposed to be the cornerstone of the decision-making process at multimember agencies. Critics charge that the act has compromised that collegiality. A study by the Administrative Conference of the United States found that "one of the clearest and most significant results of the Government in the Sunshine Act is to diminish the collegial character of the agency decisionmaking process" (Recommendation 84-3, Improvements in the Administration of the Government in the Sunshine Act, 49 Fed. Reg. 29937 [July 25, 1984]).

Finally, the act does not increase or decrease the public's access to records under the FOIA. In fact, access to the actual documents or other written matter discussed or referred to at a meeting subject to the Government in the Sunshine Act is expressly governed by the FOIA.

See also: Federal Advisory Committee Act; Freedom of Information Act; Privacy Act of 1974.

BIBLIOGRAPHY

Berg, Richard K., Stephen H. Klitzman, and Gary J. Edles. An Interpretive Guide to the Government in the Sunshine Act, 2d ed. Washington, DC: American Bar Association Section of Administration Law and Regulatory Practice, 2003.

Senate Committee on Governmental Affairs, Government in the Sunshine Act: History and Recent Issues. 101st Congress, 1st session, 1989.

Skrzycki, Cindy. "Getting a Little Burned Up About the Sunshine Act." Washington Post, (April 18, 1995) F-1.

Vitello, Paul. "They Want the Public Shut Out." Newsday Nassasu/Suffolk ed. (October 17, 1996) A-8.