Government in the Sunshine Act

AuthorWilliam Funk - Jeffrey S. Lubbers
in the
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).
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.
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

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