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Reporter's Handbook - The Federal Government in the Sunshine Act: A Federal Mandate for Open Meetings


by Joseph Z. Fleming and José I. León
Updated August 2008

I. Introduction
II. Basic Provisions III. What Are the Statutory Exemptions to the Law?
IV. What Is the Public Interest Exception to the Exemptions?
V. What Are the Procedures for Closing a Meeting?
VI. What Are the Expedited Closing Procedures?
VII. How Is the Law Enforced? VIII. Why Is the Sunshine Act Important? Footnotes

APPENDIX A: Agencies Covered by the Government in the Sunshine Act
APPENDIX B: Agencies Using Expedited Closing Procedures
APPENDIX C: Sample Request Letter

About the Authors


I. Introduction.

The federal "Government in the Sunshine Act" became effective March 12, 1977, as an Act "to provide that meetings of Government agencies shall be open to the public."
1 Although the Act specifically addresses only the public's right to observe government in action, it was conceived with a broader goal of enhancing agency accountability to the public and fostering public confidence and understanding of administrative decision-making processes. 2 The increasing presence of agency regulation in all aspects of our society makes these important objectives. The Act's broad scope can affect greatly the way the federal government operates, especially with regard to providing opportunity for individuals to participate in decision-making.

II. Basic Provisions.

Congress introduced its Sunshine Act declaring that "the public is entitled to the fullest practicable information regarding the decision-making processes of the Federal Government."
3 The self-declared purpose of the Act is to provide the public with such information while "protecting the rights of individuals and the ability of the Government to carry out its responsibilities." 4

Congress accomplished this policy and purpose by first defining "agency" and "meeting" and then requiring that, except as provided, "every portion of every meeting of an agency shall be open to public observation."
5 While the provision for observation does not afford the public any additional right to comment or otherwise participate in a meeting, it is intended to guarantee that "ample space, sufficient visibility, and adequate acoustics will be provided" at the meeting itself. 6 Agencies may, however, prevent persons attending meetings from displaying disruptive material, posters, or signs. The Sunshine Act does not grant a right to record, photograph, or televise an agency meeting, and so, agencies have discretion to permit these activities or not.

The broad mandate for openness is limited by the Act's definition of "agency" and "meeting" and by ten specific exemptions. Therefore, in order to determine whether an agency meeting is required to be open under the Act, it is necessary to determine: first, whether the agency involved is covered by the Act; second, whether the activity involved is a meeting within the meaning of the Act; and third, whether there is a specific exemption which applies under the Act.

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A. What Federal Agencies Are Subject to the Sunshine Act?

The Government in the Sunshine Act cove
rs all federal agencies headed by a collegial body of two or more individual members, a majority of whom are appointed by the President with the advice and consent of the Senate. It extends also to "any subdivision thereof authorized to act on behalf of the agency." 7 The Act incorporates the statutory definition of agency from the Freedom of Information Act, which, in turn, relies upon the definitions in the Administrative Procedure Act. 8 Thus, case law and other authority regarding the definition of “agency” under those statutes are controlling. Most government or government-controlled corporations, regulatory agencies, and other executive agencies, including the Executive Office of the President, are agencies for the purpose of the Act. 9 See Appendix A for a partial list of covered agencies.

Although the Act specifically excludes agencies headed by a single official, Congress did not intend to exclude agencies governed by a collegial body merely because day-to-day management is under the authority of a single individual.
10 Also, even though advisory committees generally are not agencies under the Act, part-time employee bodies that guide agency staff and approve budgets are agencies and must comply with its provisions. 11

B. What Agency Subdivisions Are Covered by the Sunshine Act?

The Act itself is not precise as to the proper interpretation of its language providing that subdivisions authorized to act on behalf of the agency must comply with its provisions. The Chairman of the Administrative Conference of the United States has concluded that it applies only to subdivisions which include a member of the collegial governing body, excluding other subdivisions made up entirely of employees other than members of the collegial body even when such subdivisions are authorized to act on behalf of the agency.
12 The Office of the Chairman of the Administrative Conference generally is charged with advising and assisting federal agencies in matters of administrative procedure, and the Act specifically orders each agency subject to its provisions to consult with that Office in conjunction with promulgating regulations to implement the requirements of the Act. 13 Federal courts have upheld this interpretation of the Act. 14

Unfortunately, this interpretation limits the scope of the Act's substantive requirement that federal agency decision-making be open to the public. An agency's governing body effectively can close a matter to the public by referring it to a non-board subdivision for a decision or ruling made in private.

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C. What Meetings Are Subject to the Sunshine Act?

A "meeting" for purposes of the Act is any
agency deliberation which focuses on agency business and involves at least the number of agency members necessary to act on behalf of the agency. 15 Congress specifically provided that "every portion of every meeting . . . shall be open," 16 thereby bringing deliberations on preliminary decisions within the purview of the Act. However, exploratory discussions or briefings which do not predetermine official agency action are not meetings under the Act. 17

The Act does not define "deliberation." Legislative history shows Congress used the term intending the open-meeting requirement would extend beyond formal action and include all discussions in which a quorum of members consider agency business.
18 Congress apparently even meant to include conference telephone calls or a series of two-way calls which involve the required number of agency members, 19 although certain impractical aspects to "openness" in such a situation probably would require judicial interpretation. On the other hand, agency business conducted solely through correspondence or other written materials is not considered agency deliberation under the Act, even when it involves a quorum of agency members. 20 Nor does mere physical presence of a requisite number of agency members at one location constitute deliberations when the members are not conducting agency business "jointly" as a body. 21 For example, one agency member might deliver a speech at which other members of the agency are scattered throughout the audience. 22

Congress inserted the quorum requirement to ensure that casual nonbusiness get-togethers and social gatherings would be free from the openness requirement.
23 Unfortunately, this provision presents another opportunity for circumvention of the Act's intent. However, notwithstanding the quorum provision, a court which found agency members intentionally meeting in smaller groups to avoid the Act likely would hold such conduct a violation of the Act.

In
FCC v. ITT World Communications, Inc.,24 the United States Supreme Court unanimously held that the federal Sunshine Act did not cover Federal Communications Commission members' attendance at an international conference. The Court's analysis illustrates some of the issues involved in a judicial challenge to closed meetings. Even though the three FCC members attending the conference clearly did not constitute a quorum of the FCC, the Court found they did comprise a quorum of the FCC's Telecommunications Committee, a subdivision authorized to act on behalf of the agency. However, the sessions were held not to be meetings under the Act, in that the attendees did not deliberate upon matters within the Telecommunications Committee's formally delegated authority, which was limited to considering and acting upon applications for common carrier certification. Further, the sessions were not deemed agency meetings because they were not conducted in accordance with procedures subject to the agency's unilateral control.

The Court ruled that Congress did not intend the Sunshine Act to cover informal conversations or to restrain agencies in their efforts to obtain information from the public, and it cited an
amicus curiae memorandum submitted by the American Bar Association which argued that requiring agencies to open their discussions with persons from outside the agency "would have a pronounced (and deleterious) effect on the interaction between the agencies and the public." 25 The ABA's position reveals its desire to assist lawyers and lobbyists and implies that the preferred form of agency interaction with the public is through "private" communications with those portions of the public that have a specific interest before the agency. This view on the public interest places a disturbing emphasis on "interest" over the "public."

Following FCC v. ITT World Communications, Inc., one court has explicitly approved a regulation of the Nuclear Regulatory Commission (NRC) that defines a “meeting” as deliberations of a quorum of commissioners where such deliberations “are sufficiently focused on discrete proposals or issues as to cause or to be likely to cause the individual participatng members to form reasonably firm positions regarding matters pending or likely to arise before the agency.” 26. This is a much more restrictive definition of “meeting” than early advocates of the Sunshine Act had hoped for.
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D. What Are the Notice Requirements of the Sunshine Act?

The federal Sunshine Act requires that every agency meeting be announced publicly at least one week in advance, regardless of whether the meeting is to be open or closed.
27 The notice must state the time, place, and subject matter of the meeting, whether it is to be open or closed, and the name and telephone number of a designated official who can respond to requests for information about the meeting. 28

If there is a change in the time or place of the meeting after the public announcement, the agency must announce publicly the change at the earliest practicable opportunity. The subject matter of the meeting and the decision to open or close the meeting may be changed by public announcement at the earliest practicable time only if, by recorded vote, a majority of agency members determines that agency business so requires and no earlier announcement of the change was possible.
29 Whereas additions to a meeting agenda clearly constitute a subject matter change, deletions and carry-overs of agenda items are viewed as aspects of flexibility which agencies must possess to manage priorities effectively. 30

Agencies may announce a meeting with less than one week's notice if a majority of members determines by recorded vote that agency business requires such a meeting, but the agency is required to provide a public announcement at the earliest practicable opportunity.
31 Congress intended "affording the public less than one week's notice, or making changes after the meeting has been publicly announced, should occur only on an emergency basis." 32

The public's ability to attend meetings is determined, of course, by the adequacy of public notice. All mandated public announcements are required to be submitted immediately to the Federal Register for publication.
33 However, mere publication in the Federal Register would seem to present problems. Normally it takes two business days to publish a meeting notice in the Federal Register, and even assuming that the media immediately relay this information to the public, the time involved frequently would render the notice inadequate. Fortunately, each agency is expected to use additional reasonable means to inform the public, including posting on the agency's public notice boards, publishing in publications that are read by those with an interest in the agency's activities, individual notice to those who request being put on an agency mailing list, and press releases.34 Most agency staffs prefer to schedule meetings tentatively more than a week in advance. This can provide protection against suits demanding release of minutes or transcripts or other remedies available under the Sunshine Act. For example, in R.J. Reynolds Tobacco Company v. United States Federal Trade Commission, 35 the plaintiff sued for alleged violations of the Sunshine Act's notice requirements, when the defendant agency failed to post notice of a meeting in the Federal Register and failed to follow its other customary notice practices. The Court ruled in favor of the agency, after finding that notice of the meeting was issued three times, with the earliest notice being issued almost three weeks before the meeting. Moreover, the media and interested parties who directly monitor agency meetings, bulletin boards, and trade publications frequently alert the public to tentative meeting dates in advance of the agencies' official public notifications.

Successful judicial challenges to closed meetings also might spur agencies to provide more than the statutory minimum one week's notice. A longer notice period gives the agency more public input to weigh and more time possibly to reevaluate its decision to close the meeting.

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E. Can Agencies Communicate With Interested Parties Outside of Official Meetings?

In addition to the open meeting requirements, the Sunshine Act prohibits
ex parte communications: i.e., private, off-the-record communications between an agency and one or a few of the interested outside parties to a proceeding. Basically, decision-making officials and employees of an agency are prohibited from communicating ex parte, orally or in writing, with interested parties regarding the merits of an agency hearing relating to rule-making or an adjudication required by statute to be determined after an agency hearing. 36 Similarly, outside parties are prohibited from communicating ex parte with agency officials. 37 Ex parte communications prejudice other interested parties to a proceeding. They also enable agency members to circumvent the open meeting requirement by communicating with one another through their individual communications with a common outside party.

The
ex parte provision is broader than the other sections of the Act, applying to all executive agencies "without regard to whether they are headed by a collegial body or a single individual." 38 An agency official who receives an ex parte communication is required to place the substance of such oral or written communication into the public record. 39 Agencies are authorized to sanction a party that "knowingly" violates this prohibition, including a possible dismissal or disregard of that party's claim or interest before the agency. 40
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III. What Are the Statutory Exemptions to the Law?

The Sunshine Act provides that an agency may close a meeting or any portion of a meeting where the agency properly determines that the meeting is likely to:

Disclose national security or foreign policy matters that are authorized specifically and classified properly as "secret" by Executive Order.
Relate solely to the internal personnel rules and practices of the agency.
Disclose matters specifically exempt from disclosure by statute.
Disclose privileged and confidential trade secret, commercial, or financial information obtained from a person.
Involve accusing any person of a crime, or formally censuring any person.
Disclose information of a personal nature so as to constitute a clearly unwarranted invasion of personal privacy.
Disclose law enforcement investigatory records, information, or investigative techniques, or endanger the physical safety of law enforcement personnel.
Disclose information in or related to examination, operating, or condition reports prepared by, or for the use of, an agency responsible for the regulation of financial institutions.
Prematurely disclose information so as to (a) likely cause significant financial speculation or significantly endanger the stability of a financial institution or (b) significantly frustrate implementation of proposed agency action.
Specifically concern an agency's issuance of a subpoena, an agency's participation in a civil proceeding, or a formal agency adjudication. 41

Congress intended that these exemptions be interpreted consistently with similar or identical exemptions found in the Freedom of Information Act.
42

There is no automatic exemption for agency meetings related to preparation of the federal budget. The proper closing of specific portions of budgetary discussions must be determined upon the facts of each case.
43 Similarly, there is no de facto exemption for meetings intended to advise the President. 44 The District Court for the District of Columbia has held that as a general rule, "separation of powers" and other constitutional issues involved with application of the Federal Sunshine Act must be argued and considered on a case-by-case basis, rather than abstractly. 45
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IV. What Is the Public Interest Exception to the Exemptions?

Agencies are not required to clos
e meetings that fall within the exemptions, and the Act expressly provides that meetings should not be closed "where the agency finds that the public interest requires otherwise." 46 That raises an issue whether Congress intended that a public interest determination always should be made subsequent to a determination that an exemption applies or that the public interest determination be subsumed within the exemption determination. The Chairman of the Administrative Conference has ruled that there must be a separate public interest determination with regard to overriding the second, fourth, fifth, eighth, and tenth exemptions (related to internal personal rules; trade secrets, commercial, or financial information; accusations of crime or censorship; agency reports related to regulation of financial institutions; or agency litigation). However, a finding that the sixth, seventh, or ninth exemptions apply (related to an invasion of privacy; law enforcement information; or frustration of agency action or danger of speculation) subsumes the public interest question. Lastly, the Chairman has ruled that the public interest exception cannot outweigh the mandated nondisclosure of the first and third exemptions (related to classified information or statutory nondisclosure). 47
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V. What Are the Procedures for Closing a Meeting?

The Act provides that if a meeting is closed, only those portions of the meeting which qualify for an exemption may be closed. One or more of the members of the agency may request closure if any person’s interests would be affected directly by an open meeting pursuant to the fifth, sixth, or seventh exemptions.
48 A majority of the full membership of the agency must vote to close a meeting and the vote of each agency member must be recorded and made public within one day of the vote. 49 A separate vote must be taken with respect to each meeting proposed to be closed, unless the vote pertains to a series of meetings which will involve the same particular matters and will be held within thirty days of the first meeting. 50 Members are not required to convene in order to conduct a closure vote but may rely upon a written tally sheet or ballot. 51

In the event of closure, the agency must provide a statement of the time, place, and persons to be present at the closed meeting and the general counselor or chief legal officer of the agency must certify publicly that, in his or her opinion, the meeting qualifies for closure and cite the relevant exemption.
52 The agency is required to keep a copy of the statement and certification, as well as a complete transcript or recording of each closed meeting or portion thereof. 53 Where a meeting is closed pursuant to the eighth, ninth, or tenth exemptions (related to financial institutions or agency litigation), the agency may keep a set of minutes as an alternative to a transcript or recording. However, such minutes must describe all matters discussed and views expressed, record all roll call votes, summarize any actions taken and state the reasons for such action. 54

In summary, the Act entitles the public to the following written documents in the event of a closed meeting:

Public notice of the meeting.
A copy of the closure vote reflecting each member's vote.
The general counselor's or chief legal officer's certified explanation for closing the meeting.
A list of persons expected to attend the meeting and the respective organizational affiliations of each.

The requisite record of the closed meeting ensures a possibility that the public might receive the information at a later date. It also enables
in camera inspection by a court in the event there is a subsequent judicial challenge to the agency's decision to close the meeting.

Agency deliberations on whether to invoke an exemption and close a meeting are not considered meetings under the Act;
55 therefore, there is no requirement that the public be notified or a transcript prepared of such closure deliberations. This gap appears to provide another opportunity for agency circumvention of the Act: an agency might discuss substantive issues relevant to a meeting as part of its deliberations on whether to conduct it opened or closed. Indeed, the agency conceivably might go even further and invite interested parties to appear and explain their positions on the matter. This potential for abuse can be reduced significantly if courts interpret the Act to require agencies to include within their certified explanation for closure a list of all persons who gave their views on the closure issue, together with a summary of each person's views and organizational affiliations.
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VI. What Are the Expedited Closing Procedures?

The Act provides a summary closing procedure for agencies if a majority of their meetings properly fall within the fourth, eighth, ninth, or tenth exemptions (related to trade secret, commercial, or financial information; reports on financial institutions; danger of speculation or instability of financial institution; or agency litigation).
56 The expedited procedure enables the agency to vote on closure at the beginning of the meeting rather than beforehand and dispenses with the need to provide a full written explanation of the vote on closure and a list of persons who attended the closed meeting. 57 However, agencies invoking summary closing procedures still must record and make public the vote for closure and they must announce publicly "at the earliest practicable time" the time, place, and subject matter of the closed meeting, except to the extent such information is exempt from disclosure pursuant to the exemptions. 58 Eighteen agencies currently using expedited closing procedures are listed in Appendix B.
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VII. How Is the Law Enforced?

The federal Sunshine Act provides for enforcement by judicial review.
59 Two types of federal court actions are contemplated:

A. Judicial Review of Decisions to Close a Meeting.

Any person may enforce the open meeting requirements of the Act by bringing an action in the United States District Court for the district in which the agency meeting is held, the district where the agency has its headquarters, or the District Court for the District of Columbia.
60 An action must be brought prior to or within sixty days after the meeting which gives rise to the alleged violation. If an agency's public announcement is challenged, the action must be instituted within sixty days of the announcement. 61 In accordance with the statutory presumption that meetings should be open, the burden of proof is on the agency to defend its decision to close the meeting. 62 In the event of judicial challenge, the Act instructs the court to show "due regard for orderly administration and the public interest, as well as the interest of the parties." 63

The federal court is authorized to grant such equitable relief as it deems appropriate, including an injunction prohibiting future violations of the Act
64 or ordering the agency to make public its record of the meeting. 65 However, the Act specifically does not authorize the court to set aside, enjoin, or invalidate any agency action (other than an action to close a meeting or to withhold information) taken or discussed at a closed meeting.66 The court may assess reasonable litigation expenses and attorney's fees against the offending agency when the plaintiff "substantially prevails." 67 If the defending agency substantially prevails, the court may award costs and fees against the plaintiff only where the court finds that the suit was initiated primarily for "frivolous or dilatory purposes." 68

A party conceivably could sue to force an agency to close a meeting. Although the Act does not authorize such an action expressly, it provides that a person whose interest may be affected directly can request that a portion of the meeting be closed under the fifth, sixth, or seventh exemptions (related to accusation of a crime, invasion of personal privacy, or the disclosure of investigatory files).
69 This language might be deemed to authorize judicial review in the event an agency denies such a request.

Unfortunately, however, courts are sometimes extremely hesitant about exercising the jurisdiction granted to them by the Sunshine Act if there is a danger of disrupting normal agency review procedures. In Public Utility Dist. No. 1 of Snohomish County, Washington v. F.E.R.C., for instance, the District Court recognized that it had authority to order discovery into a possible Sunshine Act violation stemming from Federal Energy Regulatory Commission commissioners’ ex parte contact with a party to a dispute, but the District Court refused to issue an order in light of the exclusive jurisdiction of the U.S. Circuit Court of Appeals over the agency’s final order deciding the dispute. 70
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B. Judicial Review of Agency Regulations.

Federal agencies are required to promulgate regulations to implement the provisions of the Act. These regulations, or an agency's failure to promulgate regulations, subsequently can be challenged in the United States District Court for the District of Columbia.
71 Congress intended that the time limitations for a direct challenge to newly promulgated regulations should not preclude a subsequent challenge by a party to whom the regulations are applied. 72 This suggests that if an agency cites one of its regulations as a basis for closing a meeting, a party seeking to open the meeting may challenge the regulation in court.

VIII. Why Is the Sunshine Act Important?

Some agencies will resist the open meeting concept. Glen O. Robinson, former Commissioner of the FCC, has suggested:


[I]f agencies are going to evade [the Act], then there is nothing that legislation can do to stop it . . . I think the point is to try to enlist as much as possible, the voluntary acceptance and coordination an acceptance of spirit of the legislation, and the one way of doing this is to provide some degree of flexibility. 73

This comment implies that agencies are doing the public a favor by opening their meetings, an attitude inconsistent with the Act's stated policy and with a broad interpretation of the First Amendment's guarantees of freedom of the press and speech.

Although the extent of agency compliance with the Act's provisions ultimately may be determined by public demand for opening meetings and private party willingness to seek judicial enforcement, fortunately there are a number of factors that encourage voluntary compliance.


A. Increased Public Understanding.

Through open meetings, the public gains insight into the decision-making processes of the agency, as well as its goals and constraints. This increased public understanding can lead to less antagonistic and less suspicious interaction with the public.
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B. Opportunity for More Effective Public Input and Enlistment of Public Support.

Although the Act only requires the public be given an opportunity to observe, many agencies are likely to go further and allow the public to participate. Such participation enables an agency to fashion its decisions around the input and reaction of the interested public in attendance. This serves the interest of the agency.

Additionally, some agencies have little or no power to alter the course of matters they are asked to review. Open meetings enable such agencies to bring public attention to matters that need to be addressed. For example, the Council on Environmental Quality under the National Environmental Policy Act reviews environmental impact statements on major federal actions but cannot veto those which threaten significant harm to the environment. However, the exposure and concern which might result from public attendance at the Council's open deliberations might lead to a change in federal planning.

C. Concern About Judicial Review.

An agency's decision to close a meeting is subject to judicial review. The negative publicity associated with such litigation provides an effective incentive to conduct agency business in compliance with the Act.

D. Commitment of the Media.

The media's commitment to informing the public about government activities and decisions probably will be the most important factor ensuring that the open meeting provisions of the Act are interpreted as broadly as possible and the exemption provisions restricted to situations which give rise to their valid purposes.

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Footnotes

1 P.L. 94-409 [5.5], Government in the Sunshine Act, preamble.
2 H.R. Rep. No. 880, 94th Cong., 2nd Sess., reprinted in 1976 U.S. Code Cong. & Admin. News 2183, 2184
3 P.L. 94-409 [5.5], Government in the Sunshine Act, Sec. 2.
4
Id.
5 5 U.S.C. Sec. 552b(b)
6 H.R. Rep. No. 880 at 2190.
7 5 U.S.C. Sec. 552b(a)(1)
8 The Act incorporates the definition of "agency" from 5 U.S.C. Sec. 552(e), but limits that definition by the condition that such agency be headed by "a collegial body composed of two or more individual members." In 1986, 5 U.S.C. Sec. 552 was amended, and what had been 5 U.S.C. Sec. 552(e) — a section defining "agency" — was redesignated 5 U.S.C. Sec. 552(f). The Act, however, has not been amended to incorporate the definition of "agency" from 5 U.S.C. Sec. 552
(f) instead of 5 U.S.C. Sec. 552(e).
9 5 U.S.C. Sec. 552(f).
10 S. Rep. No. 1178, 94th Cong., 2d Sess. 10-11 (1976).
11 H.R. Rep. No. 880 at 2189.
12 Berg,
Interpretive Guide to the Government in the Sunshine Act (1978) at 2-3.
13 5 U.S.C. Sec. 552b(g).
14
Hunt v. Nuclear Regulatory Comm'n, 611 F.2d 332 (10th Cir. 1979), cert. denied, 445 U.S. 906 (1980).
15 5 U.S.C. Sec. 552b(a)(2).
16 5 U.S.C. Sec. 552b(b).
17
Guide at 6.
18 H.R. Rep. No. 880 at 2190.
19
Id.
20 S. Rep. No. 1178 at 11.
21 H.R. Rep. No. 880 at 2190.
22
Id.
23 S. Rep. No. 354, 94th Cong., 1st Sess. 18 (1975).
24 466 U.S. 463 (1984).
25
Id. at 473 n12.
26 Natural Resources Defense Council, Inc. v. Nuclear Regulatory Com’n, 216 F.3d 1180 (D.C. Cir. 2000).
27 5 U.S.C. Sec. 552b(e)(1).
28
Id.
29 5 U.S.C. Sec. 552b(e)(2).
30
Guide at 51-52.
31 5 U.S.C. Sec. 552b(e)(1).
32 H.R. Rep. No. 880 at 2196-97.
33 5 U.S.C. Sec. 552b(e)(3);
Guide at 54.
34
Guide at 55.
35 1999 U.S. Dist. Lexis 8398; 1999 WL 816699; 1999-1 Trade Cases P 72,542 (DC May 24, 1999).
36 5 U.S.C. Sec. 557(d)(1)(B).
37 5 U.S.C. Sec. 557(d)(1)(A).
38 H.R. Rep. No. 880 at 2186.
39 5 U.S.C. Sec. 557(d)(1)(C).
40 5 U.S.C. Sec. 557(d)(1)(D).
41 5 U.S.C. Sec. 552b(c)(1)-(10).
42 H.R. No. 880 at 2191-94.
43
Common Cause v. Nuclear Regulatory Comm'n, 674 F.2d 921, 935-36 (D.C. Cir. 1982).
44
Pacific Legal Fdtn. v. Council on Environmental Quality, 636 F.2d 1259, 1264-65 (D.C. Cir. 1980).
45
Id. at 1265.
46 5 U.S.C. Sec. 552b(c).
47
Guide at 17.
48 5 U.S.C. Sec. 552b(d)(2).
49 5 U.S.C. Sec. 552b(d)(3).
50 5 U.S.C. Sec. 552b(d)(1).
51 H.R. Rep. No. 880 at 2195.
52 5 U.S.C. Sec. 552b(f)(1);
Id.
53
H.R. Rep. No. 880 at 2195.
54
Id.
55 5 U.S.C. Sec. 552b(a)(2).
56 5 U.S.C. Sec. 552b(d)(4).
57
Id.
58
Id.
59 5 U.S.C. Sec. 552b(h)(1), (h)(2).
60 5 U.S.C. Sec. 552b(h)(1).
61
Id.
62
Id.
63
Id.
64
Id.
65
Id.
66 5 U.S.C. Sec. 552b(h)(2).
67 5 U.S.C. Sec. 552b(i).
68
Id.
69 5 U.S.C. Sec. 552b(d)(2).

70 Public Utility Dist. No. 1 of Snohomish County, Washington v. F.E.R.C., 270 F.Supp.2d 1 (D.C. 2003).
71 5 U.S.C. Sec. 552b(g).
72 H.R. Rep. No. 880 at 2198.
73 Hearings on H.R. 10315 and H.R. 9868, 94th Cong., 1st Sess. 82 (1975).

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APPENDIX A
AGENCIES COVERED BY
THE GOVERNMENT IN THE SUNSHINE ACT


1. Assassination Records Review Board
2. Board for International Broadcasting (BIB)
3. Civil Aeronautics Board (CAB)
4. Commodity Credit Corporation (CCC) (Board of Directors)
5. Commodity Futures Trading Commission (CFTC)
6. Consumer Product Safety Commission (CPSC)
7. Corporation for National and Community Service
8. Council on Environmental Quality (CEQ)
9. Defense Nuclear Facilities Safety Board
10. Equal Employment Opportunity Commission (EEOC)
11. Export-Import Bank of the United States (EIB) (Board of Directors)
12. Federal Communications Commission (FCC)
13. Federal Deposit Insurance Corporation (FDIC) (Board of Directors)
14. Federal Election Commission (FEC)
15. Federal Energy Regulatory Commission (FERC)
16. Federal Farm Credit Board (FFCB) within the Farm Credit Administration
17. Federal Housing Finance Board
18. Federal Maritime Commission (FMC)
19. Federal Mines Safety and Health Review Commission
20. Federal Reserve Board (FRB)
21. Federal Trade Commission (FTC)
22. General Services Administration (GSA)
23. Harry S. Truman Scholarship Foundation (HSTSF) (Board of Directors)
24. Indian Claims Commission (ICC)
25. Inter-American Foundation (IAF)
26. Interstate Commerce Commission (ICC)
27. Legal Services Corporation (LSC)
28. Marine Mammal Commission
29. Mississippi River Commission (MRC)
30. National Center for Productivity and the Quality of Working Life (NCPQWL)
31. National Commission on Libraries and Information Science (NCLIS)
32. National Council on Educational Research (NCER)
33. National Labor Relations Board (NLRB)
34. National Mediation Board (NMB)
35. National Railroad Passenger Corporation (NRPC)
36. National Science Board (NSB) of the National Science Foundation
37. National Transportation Safety Board (NTSB)
38. Nuclear Regulatory Commission (NRC)
39. Occupational Safety and Health Review Commission (OSHRC)
40. Overseas Private Investment Corporation (OPIC) (Board of Directors)
41. Postal Rate Commission (PRC)
42. Railroad Retirement Board (RRB)
43. Renegotiation Board (RB)
44. Securities and Exchange Commission (SEC)
45. Tennessee Valley Authority (TVA) (Board of Directors)
46. Uniformed Service University of the Health Sciences (USUHS)
47. U.S. Civil Service Commission (USCSC)
48. U.S. Commission on Civil Rights (USCCR)
49. U.S. Foreign Claims Settlement Commission (ULFCSC)
50. U.S. International Trade Commission (USITC)
51. U.S. Parole Commission (USPC)
52. U.S. Postal Service (USPS) (Board of Directors)
53. U.S. Railway Association (USRA)

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APPENDIX B
AGENCIES USING EXPEDITED
CLOSING PROCEDURES


1. Commodity Credit Corporation
2. Commodity Futures Trading Commission
3. Equal Employment Opportunity Commission
4. Export-Import Bank of the United States
5. Federal Deposit Insurance Corporation
6. Federal Farm Credit Board, Farm Credit Administration
7. Federal Housing Finance Board
8. Federal Reserve System Board of Governors
9. Federal Trade Commission
10. Indian Claims Commission
11. National Labor Relations Board
12. National Mediation Board
13. Occupational Safety and Health Review Commission
14. Postal Rate Commission (PRC)
15. Securities and Exchange Commission (SEC)
16. United States Parole Commission
17. United States Postal Service

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APPENDIX C
SAMPLE REQUEST LETTER

Dear Records Custodian,

Pursuant to the Freedom of Information Act, as amended (5 U.S.C. Sec. 552), and in line with the "Government in the Sunshine Act" (Pub. L. No. 94A09), the Local and Short Haul Carriers National Conference hereby requests the following information regarding the Commission's August 17, 1977 meeting with members of the National Industrial Traffic League (League) held at the Washington Hotel in Washington, D.C.:


1. (1) The names of all commissioners in attendance at such meeting;

2. (2) The names of all League officers and shipper representatives present at such meeting;

3. (3) The name(s) of person requesting such meeting and the name(s) of Commission officers giving approval for such meeting;

4. (4) A copy of the official transcript of such meeting or, in lieu thereof, a summary of all matters discussed and considered at said meeting; and

5. (5) With respect to (4) above, if a summary is provided, we request that such summary disclose the following in summary form:


a. (a) All discussions relating to matters pending before the Commission, i.e., rates, rule-making proceedings, staff recommendations relating to motor carrier entry and competition within the motor carrier industry;

b. (b) All recommendations received from attendees (both public and private) regarding future Commission actions involving rates, rule-making proceedings, motor carrier entry and competition; and

c. (c) All recommendations received from attendees (both public and private) regarding suggested amendments to the Interstate Commerce Act involving both procedural and substantive regulation of the motor carrier industry and other modes of transportation subject to the jurisdiction of the Commission.


Should you determine that some of the information requested is exempt from disclosure, please advise us which exemption you believe covers the material not being disclosed. In addition, should a portion of any requested matter be considered exempt from disclosure, we trust that you will make every endeavor to disclose those portions which are "reasonably segregable" from the exempt matter. We, of course, reserve the right to appeal any such determinations.

Sincerely,

[ name ]

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ABOUT THE AUTHORS

Jerold I. Budney is currently Associate General Counsel for
The Miami Herald and previously had represented The Herald and other media clients in private practice. He has been a member of The Florida Bar since 1979, having received his B.A. from the University of Michigan and his J.D. from Harvard Law School.

Sandra F. Chance is assistant director of the University of Florida's Brechner Center for Freedom of Information and an assistant professor in the journalism department in the College of Journalism and Communications. She has been a member of The Florida Bar since 1991, having received her B.S. with high honors in 1975 and M.A. with distinction in 1985 from the University of Florida's College of Journalism and Communications, and her J.D. with honors from the University of Florida's College of Law. She practiced media law at the law firm of Holland & Knight in Tampa before joining the faculty at UF.

Joseph Z. Fleming practices law in Miami. He received his law degree from the University of Virginia School of Law and a masters degree in labor law from New York University Graduate School of Labor Law. He has served in the past as an editor of the Reporter's Handbook. He also has served as Chairman of The Florida Bar's Entertainment, Arts and Sports Law Section, as Chairman of what is now known as The Florida Bar's Environmental and Land Use Law Section, and also The Florida Bar's Labor and Employment Law Section. He is currently the Chairman of the American Bar Association's Urban Environment Committee and serves as an advisory member of the Labor Law Advisory Group of American Law Institute—American Bar Association's Committee on Continuing Professional Education and as a course Chairman for ALI-ABA programs.

José I. León is an associate in the Miami office of Epstein Becker & Green, P.C. He graduated from the University of Miami with a B.A. in 1989, and received a J.D. from the University of Chicago in 1992. He has been a member of The Florida Bar since 1992, and a member of the Nevada Bar since 1993.

James D. Spaniolo is a former General Counsel of
The Miami Herald, and currently Vice President and Secretary of the Knight Foundation located in Miami. He received a B.A. degree from Michigan State University in 1968, a J.D. degree from the University of Michigan law school in 1975 and a master of public administration degree from the University of Michigan in 1975.

Samuel A. Terilli is General Counsel of
The Miami Herald. Formerly, he practiced law with the Miami law firm of Paul & Thomson (now known as Thomson Muraro Razook & Hart), which represents The Miami Herald and other media clients. He received his J.D. degree from the University of Michigan and his B.A. from the State University of New York at Albany.
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Authored by the Media & Communications Law Committee, the handbook serves as a resource guide for members of the media about topics in the legal profession.

[Revised: 5/1/2002]