How A Badly Drafted Sunshine Act Hobbles a Federal Agency.

• Author: Sapper, Arthur G.
• Position: BRIEFLY NOTED

Sunshine acts require meetings of multimember government agencies to be open to the public. These statutes are said to embodyjustice Louis Brandeis's declaration that "sunlight... is the best disinfectant." But as Iowa law professor Arthur Bonfield has noted, "Too much sunshine causes sunburn." An example of this is the hobbling effect that the federal Sunshine Act has had on the Occupational Safety and Health Review Commission (OSHRC).

The OSHRC was established in 1971 as an adjudicative agency to resolve disputes over citations issued by the Occupational Safety and Health Administration. The commission is not part of the Labor Department and is wholly independent of it. The OSHRC has three members, each appointed to staggered six-years terms by the president and subject to confirmation by the Senate. It assigns administrative law judges to hear cases and, much like the certiorari procedure used by the U.S. Supreme Court, reviews their decisions on a discretionary basis.

Like any multimember adjudicative body, indeed like any appellate court, the OSHRC's core functions have a meeting stage and an opinion-writing stage. During the latter stage, drafts of opinions are circulated and discussed, issues that previously did not loom large are more fully ventilated, and ways of writing the opinion so as to gather a majority or avoid dissents are explored. Broad holdings may be narrowed, statements may be qualified, reservations may be noted, and rationales may be sharpened or removed and others substituted. Even votes may change; dissents may become lead opinions and vice versa.

Pushing out commissioners/The Sunshine Act requires that each meeting of a quorum of members of a multimember agency be announced to the public in advance and that the public be permitted to attend. Agencies may vote to close meetings at which adjudication is to be performed, however, and the OSHRC does so as a matter of course. The problem is that the term "meeting" is so defined that each case-related visit, telephone call, and email between two commissioners triggers those requirements. As a 2013 study commissioned by the Administrative Conference of the United States (ACUS) found:

Should [agency members] wish to discuss the wording of ... an opinion, as would an appellate court, the members have to notice, and vote to close, another "meeting." ... Obviously, this inefficiency is heightened in the case of ... the OSHRC[,] where no two members can ever discuss agency...