How FACA works
Federal agencies and the White House itself seek advice from a multitude of private sources outside of government. FACA both governs the way these advisory committees function and opens them up to public examination.
FACA specifically applies to advisory committees “established” or “utilized” to advise the president or executive branch agencies. An advisory committee is defined as:
Any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee . . . established or utilized . . . in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the federal government.
The same executive branch agencies covered under FOIA and the Sunshine Act are covered by FACA. Advisory committee records are subject to the same nine exemptions as FOIA.
Under FACA, advisory committee meetings must be open to the public. A committee must provide public notice in the Federal Register 15 days prior to the meeting. The notice must include the committee name; the time, place and purpose of the meeting; a summary of the agenda; and if any portion of the meeting is closed, the reason and exemption(s) in the Government in the Sunshine Act that apply. An advisory committee meeting can be closed to the public if the president or an agency head determines that any of the 10 exemptions to the Sunshine Act apply (see below).
The committee must provide access to materials provided to it, including reports, transcripts, minutes, working papers, agendas or other documents unless any of the nine FOIA exemptions would apply. The committees must also keep minutes of their meetings.
The General Services Agency oversees advisory committees and considers at its discretion whether committees continue to carry out their purposes and whether any revisions should be made.
Additionally, the advice must be related to government policy. The law applies to one-time meetings where advice is sought.
Where FACA applies
FACA does not apply to the Advisory Commission on Intergovernmental Relations, the Commission on Government Procurement, the National Academy of Sciences, the Central Intelligence Agency, the Federal Reserve System or the National Academy of Public Administration. It also does not apply to committees composed of full-time officers or employees of the federal government or to the first lady of the U.S.
An American Bar Association advisory committee to the Federal Judiciary that concerns candidates for federal judicial appointments is not an advisory committee under FACA.75 Because the committee was not formed by the federal government, not controlled by the Justice Department and received no federal funds, the U.S. Supreme Court held it was not “utilized” as an advisory committee. This decision led to an interpretation that a committee that prepared work product relied upon by a federal agency is an advisory committee under FACA.76
FACA does not extend to a committee’s activities beyond its advice to the executive branch.
How to enforce FACA
Unlike FOIA or the Sunshine Act, FACA does not provide an explicit right to sue within the law itself. However, courts have recognized a right of action through lawsuits brought under the Administrative Procedures Act. A complaint for a FACA violation should describe an agency’s noncompliance and the relief requested in the suit.
75 Public Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 467 (1989) (holding that the ABA’s Standing Committee on the Federal Judiciary is not an advisory committee “utilized by” the Department of Justice and it would be unconstitutional to apply FACA to that committee).
76 Animal Legal Defense Fund v. Shalala, 104 F.3d 424 (D.C. Cir. 1997), reh’g en banc denied, 114 F.3d 1209 (D.C. Cir. 1997) (finding that a National Academy of Sciences committee was relied upon by a federal agency; subsequently Congress amended FACA to exempt the National Academy of Sciences).