14. Government in the Sunshine Act

• Pages: 725-744

725

GOVERNMENT IN THE SUNSHINE ACT

14

Government

in the

Sunshine

Act

725

Citations:

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).

Overview:

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.

726 GOVERNMENT IN THE SUNSHINE ACT

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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-

lations.

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