14. Government in the Sunshine Act

in the
5 U.S.C. §552b (2000); enacted September 13, 1976 by Pub. L. No. 94-
409, 90 Stat. 1241; amended by Pub. L. No. 104-66, Title III §3002, 109
Stat. 707, 734 (Dec 21. 1995).
The principal operative provision of the Government in the Sunshine
Act, section 3, amended title 5 of the U.S. Code to add a new section 552b,
entitled “Open Meetings.”1 Section 3 requires, in general, that meetings of
each federal agency headed by a collegial body, a majority of whose mem-
bers 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 Ex-
change Commission, Federal Trade Commission, Federal Communications
Commission, Consumer Product Safety Commission, and National Labor
Relations Board.) The right of observation provided by the Act does not
include any right to participate in the agency’s deliberations. The Act pro-
vides 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.
1Section 4 of Pub. L. No. 94-409 amended the Administrative Procedure
Act, 5 U.S.C. §557, to forbid ex parte communications in certain agency pro-
ceedings (see Chapter 1, Administrative Procedure Act). Section 5 makes minor
amendments in several other statutes. Neither section relates directly to the sub-
ject of agency open meetings.
Summary. The principal provisions of the Act may be summarized briefly.
Subsection (a) defines the basic terms “agency,” “meeting,” and “member.
Subsection (b) declares a presumption in favor of open meetings. Subsection
(c) allows an agency to close a meeting or portion of a meeting or to withhold
information about a meeting or portion of a meeting if the agency determines
that the meeting or portion, if opened, or the information, if released, would
be likely to disclose information protected from disclosure under one or more
of the ten exemptions of subsection (c). These exemptions are permissive,
not mandatory, and subsection (c) also provides that agency meetings other-
wise 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 (5 U.S.C. §552). There is, however, an
important exception. There is no exemption in the Sunshine Act that parallels
the fifth exemption in the Freedom of Information Act for interagency and
intra-agency memoranda and letters. This is because, while the FOIA recog-
nizes 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 R. Berg and S. Klitzman, An Interpretive
Guide to the Government in the Sunshine Act (2d ed.) 67 (2005). This Guide,
recently updated for the ABA, is the authoritative source on the Act, and this
Sourcebook chapter relied heavily on its bibliography and list of agency regu-
On the other hand, the Sunshine Act does have two important exemp-
tions that lack counterparts in the FOIA and that protect the deliberative
process in certain defined circumstances. Exemption 9 permits those agencies
that regulate securities, commodities, or financial institutions to close meet-
ings to protect information, the disclosure of which would lead to speculation
or endanger the stability of financial institutions. More broadly, it permits
any agency to close a meeting to protect information the disclosure of which
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 par-
ticular cases involving formal (but not “informal”) adjudication.
Procedures for Closing Meetings. Subsections (d), (e), and (f) pre-
scribe the procedures agencies must follow in closing meetings, announcing
and changing meetings, and withholding and/or releasing substantive infor-
mation regarding such meetings. Under subsection (d)(1), agencies may de-
cide to close meetings or withhold information about meetings only by
recorded majority vote of the entire membership of the agency. Subsection

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