Government in the Sunshine Act

• Author: William Funk - Jeffrey S. Lubbers
• Pages: 731-749

731

GOVERNMENT IN THE SUNSHINE ACT

14

Government

in the

Sunshine

Act

731

Citations:

5. U.S.C. § 552b (2012); 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,

titled “Open Meetings.”1 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 Act does not include any right to participate in

the agency’s deliberations. The 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.

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 others statutes. Neither section relates directly to the

subject of agency open meetings.

732 GOVERNMENT IN THE SUNSHINE ACT

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Summary. The principal provisions of the Act may be summarized briefly.

Subsection (a) defines the words “agency,” “meeting,” and “member.” Sub-

section (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

is the authoritative source on the Act.

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 that, if disclosed, would lead to speculation or

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. Exemp-

tion 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) 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

(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