How the Sunshine Act works
The Sunshine Act is crucial for journalists who cover national issues. It applies to the same executive branch agencies covered by FOIA, such as the Environmental Protection Agency and the Federal Communications Commission. Since Congress does little to force agencies to comply with the Act’s requirements, journalists operate as government watchdogs to oversee enforcement of the Act. Because they rarely learn of agency meetings beforehand, they often must depend on meeting transcripts required to be kept by the agency rather than on information actually obtained at the meetings.
The open meeting requirement of the Act mandates that, except as provided in the Act’s 10 exemptions, “every portion of every meeting of an agency shall be open to public observation.”
Congress requires agencies to follow a specific procedural process to close or properly open a meeting. To comply with the Act’s openness requirement, an agency must publicly announce the time, place and subject matter of the open meeting at least one week prior to the meeting date. The agency must submit that information to the Federal Register for publication immediately following public announcement.
In practice, it is unclear what Congress meant when it required that agencies make a “public announcement”; different agencies interpret it in different ways. For example, the Federal Trade Commission posts notices at its office, records the information at a specified voice mail system that journalists and the public can call, publishes notice in the Federal Register and maintains a mailing list to notify interested persons by mail. On the other hand, the Environmental Protection Agency sends notice to the Federal Register and considers the requirement met. The Federal Register is accessible online at www.gpoaccess.gov/fr/.
To close a meeting, a majority of the agency membership must vote to do so under one of the Act’s exemptions. Within one day, the agency must publicize this vote. Next, the agency must submit to the Federal Register the time, place and subject matter of the meeting along with an indication that the meeting will be closed. The agency’s chief legal officer must also publicly certify that he thinks the meeting is closed properly under an appropriate exemption. After the meeting, the agency must retain a transcript, unless the meeting is closed under Exemptions 8, 9(a) or 10, in which case a set of detailed minutes will meet the requirement. The agency must promptly make public the portions of the transcript not exempted. If a court finds the agency improperly closed a meeting, the agency may need to release a full transcript to the public.77
If an agency is not subject to FOIA, then it is not subject to the Sunshine Act.78 The Sunshine Act does not require an agency to hold meetings for all the decisions it makes; rather, only when an agency hosts a meeting must it be open to the public.79
What is an “Agency?”
Under the statutory text, an “agency” is each authority of the United States:
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 that agency.
An agency does not include: Congress, the federal courts, governments of U.S. territories, the government of the District of Columbia, agencies composed of representatives of the parties to the disputes determined by the agencies, courts martial and military commissions, or military authority exercised in the field in times of war. In addition, the term “agency” does not include certain government-created financial committees.
Without express exclusion by Congress, a collegial body is not exempt from the Sunshine Act, even if the agency produces “statutory directives inconsistent with the Act’s public meeting requirements.”80
If a collegial body’s “sole function is to advise and assist the President,” it is not an “agency” under the Act.81
If members were not appointed by the president to serve on a board, the board cannot be an “agency.”82
Finally, subdivisions of federal agencies, such as executive boards or specific committees, are also subject to the open meeting requirement. However, the rule applies only if the subdivisions are divisions of the collegial body, not boards or committees staffed by outsiders.83
What is a “Meeting?”
The Act defines a meeting as:
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.
In addition, the Supreme Court added language to the definition of “meeting” in 1984, expanding the definition to include discussions that “effectively predetermine official actions.”84 Essentially, if enough members of an agency who could pass a vote meet to discuss issues the agency is currently investigating or likely will be investigating, the gathering qualifies as a “meeting” under the Act and can be closed only under a statutory or judicially created exemption.
A “meeting” under the Act does not include a meeting at which only the scheduling of a future meeting is discussed.85 “Notational voting” has become an end run around the Act — an agency can take a paper vote without constituting a meeting.86
How to enforce the Sunshine Act
Journalists may sue in federal court if an agency has violated either the openness or closure requirements. They can also file suit to remind federal agencies to follow the law. The statute provides any person a right to sue in federal district court. Journalists may use this provision to seek a declaration that an agency is violating the Act, to stop an offending practice within an agency or to force the agency to open meetings. Journalists can also use the federal court system to demand that an agency turn over meeting transcripts. Other discretionary relief may be available under the statute.
Legal action must be brought prior to a scheduled meeting or within 60 days after the meeting occurs.
Exemptions to opening meetings under the Sunshine Act
The Sunshine Act includes 10 exemptions or reasons that the government can refuse to open an agency meeting. Unlike the exemptions to FOIA, there has been very little interpretation of these exemptions in the courts. Most interpretation varies based on individual agency regulations and practices.
Except where an agency finds that the public interest requires otherwise, agencies may close meeting portions “where the agency properly determines that such portion or portions of its meeting or the disclosure of such information is likely to:
(1) Disclose matters ordered confidential by executive order and properly classified as such on the basis of national defense or foreign policy;
(2) Relate solely to internal personnel rules and practices of the agency;
(3) Disclose matters exempted by statute, “provided that such statute (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;
(5) Involve criminal accusation or official censure;
(6) Constitute a “clearly unwarranted invasion of personal privacy”;
(7) Disclose investigatory records that might interfere with enforcement proceedings, deprive a person of due process, disclose a confidential source, disclose investigative procedures, or endanger the life and safety of law enforcement personnel;
(8) Disclose information regarding regulation or supervision of financial institutions;
(9) Disclose information the premature disclosure of which would (a) in the case of an agency which regulates currencies, securities, commodities, or financial institutions, be likely to lead to significant financial speculation in currencies, securities, or commodities, or significantly endanger the stability of any financial institution; or (b) in the case of any agency, be likely to significantly frustrate implementation of a proposed agency action;
(10) Specifically concern the agency’s issuance of a subpoena, the agency’s participation in a civil action, conduct relating to a proceeding of a “particular case of formal agency adjudication,” or conduct relating to an agency determination on the record after the opportunity for a hearing.”
Courts have most often clarified Exemptions 9(b) and 10. Plaintiffs in these cases have included media organizations, other agencies, private corporations and public interest groups.
Exemption 9(b) is similar to FOIA’s Exemption 5, which exempts internal memos and policy discussions.87 However, the FOIA exemption allows closure of “pre-decisional deliberations,” which Congress chose not to exempt from the Sunshine Act requirements.88
A 9(b) exemption under the Sunshine Act must be analyzed by reference to four concrete examples provided in the House and Senate reports. These examples are an agency: (1) considering an embargo on foreign goods; (2) discussing whether to approve a proposed merger; (3) proposing its strategy for an upcoming collective bargaining with its employees; and (4) contemplating a purchase of real property.89
The most litigated exemption is Exemption 10, which prohibits disclosure of agency participation in civil litigation, conduct involving a particular case of agency adjudication, or conduct otherwise involving a determination on the record after an opportunity for a hearing. Exemption 10 “serves to facilitate the candid exchange of views between client and counsel necessary for effective participation in adversary proceedings.”90 Closure under Exemption 10 may also be proper when the closed matter is “outside of the actual hearing process,” but “clearly” concerns it.91
In addition, when the agency is required to adjudicate matters, its deliberations should be protected from disclosure under Exemption 10 as a court’s would be.92
While an agency may close a portion of a meeting under Exemption 10, the agency may not use the closed portion as an “umbrella to shield from public scrutiny all other topics.”93
77 Pan Am. World Airways, Inc. v. Civil Aeronautics Bd., 684 F.2d 31, 31 (D.C. Cir. 1982) (finding that release of transcripts was the proper remedy under the Act).
78 Rushforth v. Council of Economic Advisers, 762 F.2d 797, 798 (D.C. Cir. 1978) (finding Congress did not intend an agency to meet to discuss trivial items).
79 Communications System, Inc. v. Fed. Communications Comm’n, 595 F.2d 797, 798 (D.C. Cir. 1978) (finding Congress did not intend an agency to meet to discuss trivial items).
80 Energy Research Found. v. Defense Nuclear Facilities Safety Bd., 917 F.2d 581, 583 (D.C. Cir. 1990) (finding the safety board was an agency under the Act despite contrary recommendations).
81 H.R. Rep. No. 1380, at 14-15 (1974) (quoting from Soucie v. David, 448 F.2d 1067, 1075 (D.C. Cir. 1971) (ruling under FOIA, from which the Sunshine Act definitions originate)).
82 Symons v. Chrysler Corp. Loan Guarantee Bd., 670 F.2d 238, 240 (D.C. Cir. 1981).
83 Hunt v. Nuclear Regulatory Comm’n, 611 F.2d 332, 336 (10th Cir. 1979) (finding the Act did not apply because no member of the commission was a member of the board).
84 Federal Commc’ns Comm’n v. I.T.T. World Commc’ns, Inc., 466 U.S. 463, 471 (1984) (finding informal conferences were not meetings of “an agency” for the Act’s purposes).
85 Wash. Ass’n for Television & Children v. Federal Commc’ns Comm’n, 665 F.2d 1264, 1272 (D.C. Cir. 1981).
86 AMREP Corp., 768 F.2d at 1178.
87 Wilkinson v. Legal Services Corp., 865 F.Supp. 891, 895 (D.D.C. 1994) (finding agency’s actions were not protected by Exemption 9(b)) (overruled on other grounds)).
88 See Wilkinson v. Legal Services Corp., above.
89 See Wilkinson v. Legal Services Corp., above.
90 Clark-Cowlitz Joint Operating Agency v. Fed. Energy Regulatory Comm’n, 789 F.2d 499, 503 (D.C. Cir. 1986) (finding agency properly closed meeting under Exemption 10 even though the involved litigation had already concluded).
91 Shurberg Broad. of Hartford, Inc. v. Fed. Communications Comm’n, 617 F. Supp. 825, 830 (D.D.C. 1985).
92 Time, Inc. v. U.S. Postal Service, 667 F.2d 329, 334 (2d Cir. 1981) (holding that Exemption 10 allowed for the closure of a meeting at which the United States Postal Service board of governors considered recommendations from the postal rate commission).
93 Philadelphia Newspapers, Inc. v. Nuclear Regulatory Comm’n, 727 F.2d 1195, 1200 (D.C. Cir. 1984) (finding entire meeting could not be closed under a narrowly construed Exemption 10).