Government in the Sunshine Act

• Author: Environmental Law Reporter
• Pages: 53-55

Government in the Sunshine Act

5 U.S.C. §552b

§552b.

Open meetings

(a) For purposes of this section—

(1) the term “agency” means any agency, as defined in section

552(e)12 of this title, headed by a collegial body composed of two or

more individual members, a majority of whom are appointed to

such position by the President with the advice and consent of the

Senate, and any subdivision thereof authorized to act on behalf of

the agency;

(2) the term “meeting” means the deliberations of at least the

number of individual agency members required to take action on

behalf of the agency where such deliberations determine or result in

the joint conduct or disposition of official agency business, but does

not include deliberations required or permitted by subsection (d) or

(e); and

(3) the term “member” means an individual who belongs to a col-

legial body heading an agency.

(b) Members shall not jointly conduct or dispose of agency business

other than in accordance with this section. Except as provided in sub-

section (c), every portion of every meeting of an agency shall be open

to public observation.

(c) Except in a case where the agency finds that the public interest

requires otherwise, the second sentence of subsection (b) shall not ap-

ply to any portion of an agency meeting, and the requirements of sub-

sections (d) and (e) shall not apply to any information pertaining to

such meeting otherwise required by this section to be disclosed to the

public, where the agency properly determines that such portion or por-

tions of its meeting or the disclosure of such information is likely to—

(1) disclose matters that are (A) specifically authorized under cri-

teria established by an Executive order to be kept secret in the inter-

ests of national defense or foreign policy and (B) in fact properly

classified pursuant to such Executive order;

(2) relate solely to the internal personnel rules and practices of an

agency;

(3) disclose matters specifically exempted from disclosure by

statute (other than section 552 of this title), provided that such stat-

ute (A) requires that the matters be withheld from the public in such

a manner as to leave no discretion on the issue, or (B) establishes

particular criteria for withholding or refers to particular types of

matters to be withheld;

(4) disclose trade secrets and commercial or financial informa-

tion obtained from a person and privileged or confidential;

(5) involve accusing any person of a crime, or formally censuring

any person;

(6) disclose information of a personal nature where disclosure

would constitute a clearly unwarranted invasion of personal pri-

vacy;

(7) disclose investigatory records compiled for law enforcement

purposes, or information which if written would be contained in

such records, but only to the extent that the production of such re-

cords or information would (A) interfere with enforcement pro-

ceedings, (B) deprive a person of a right to a fair trial or an impartial

adjudication, (C) constitute an unwarranted invasion of personal

privacy, (D) disclose the identity of a confidential source and, in the

case of a record compiled by a criminal law enforcement authority

in the course of a criminal investigation, or by an agency conducting

a lawful national security intelligence investigation, confidential

information furnished only by the confidential source, (E) disclose

investigative techniques and procedures, or (F) endanger the life or

physical safety of law enforcement personnel;

(8) disclose information contained in or related to examination,

operating, or condition reports prepared by, on behalf of, or for the

use of an agency responsible for the regulation or supervision of fi-

nancial institutions;

(9) disclose information the premature disclosure of which

would—

(A) in the case of an agency which regulates currencies, secu-

rities, commodities, or financial institutions, be likely to (i) lead

to significant financial speculation in currencies, securities, or

commodities, or (ii) significantly endanger the stability of any fi-

nancial institution; or

(B) in the case of any agency, be likely to significantly frus-

trate implementation of a proposed agency action,

except that subparagraph (B) shall not apply in any instance where

the agency has already disclosed to the public the content or nature

of its proposed action, or where the agency is required by law to

make such disclosure on its own initiative prior to taking final

agency action on such proposal; or

(10) specifically concern the agency’s issuance of a subpena, or

the agency’s participation in a civil action or proceeding, an action

in a foreign court or international tribunal, or an arbitration, or the

initiation, conduct, or disposition by the agency of a particular case

of formal agency adjudication pursuant to the procedures in section

554 of this title or otherwise involving a determination on the re-

cord after opportunity for a hearing.

(d)(1) Action under subsection (c) shall be taken only when a ma-

jority of the entire membership of the agency (as defined in subsection

(a)(1)) votes to take such action. A separate vote of the agency mem-

bers shall be taken with respect to each agency meeting a portion or

portions of which are proposed to be closed to the public pursuant to

subsection (c), or with respect to any information which is proposed to

be withheld under subsection (c). A single vote may be taken with re-

spect to a series of meetings, a portion or portions of which are pro-

posed to be closed to the public, or with respect to any information

concerning such series of meetings, so long as each meeting in such

series involves the same particular matters and is scheduled to be held

no more than thirty days after the initial meeting in such series. The

vote of each agency member participating in such vote shall be re-

corded and no proxies shall be allowed.

(2) Whenever any person whose interests may be directly af-

fected by a portion of a meeting requests that the agency close such

portion to the public for any of the reasons referred to in paragraph

(5), (6), or (7) of subsection (c), the agency, upon request of any one

of its members, shall vote by recorded vote whether to close such

meeting.

(3) Within one day of any vote taken pursuant to paragraph (1) or

(2), the agency shall make publicly available a written copy of such

vote reflecting the vote of each member on the question. If a portion

of a meeting is to be closed to the public, the agency shall, within

one day of the vote taken pursuant to paragraph (1) or (2) of this

subsection, make publicly available a full written explanation of its

action closing the portion together with a list of all persons expected

to attend the meeting and their affiliation.

(4) Any agency, a majority of whose meetings may properly be

closed to the public pursuant to paragraph (4), (8), (9)(A), or (10) of

subsection (c), or any combination thereof, may provide by regula-

tion for the closing of such meetings or portions thereof in the event

that a majority of the members of the agency votes by recorded vote

at the beginning of such meeting, or portion thereof, to close the ex-

empt portion or portions of the meeting, and a copy of such vote, re-

flecting the vote of each member on the question, is made available

to the public. The provisions of paragraphs (1), (2), and (3) of this

subsection and subsection (e) shall not apply to any portion of a

meeting to which such regulations apply: Provided, That the

agency shall, except to the extent that such information is exempt

from disclosure under the provisions of subsection (c), provide the

public with public announcement of the time, place, and subject

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ADMINISTRATIVEPROCEDURE 5 U.S.C. §552b

12. See References in Text note below.