Petition to force open meetings for Nuclear Regulatory Commission fails

From the Summer 2000 issue of The News Media & The Law, page 27.

The Nuclear Regulatory Commission let Government in the Sunshine Act rules that let it close meetings it had always kept open sit idle for 14 years, but in 1999 decided that its commissioners needed to meet out of the public spotlight except when they were actually deliberating.

The Natural Resources Defense Council objected and sued, saying the agency is closing meetings about nuclear safety when the public has a strong and obvious interest in knowing what is going on at the agency. But a federal appeals court refused to review NRDC’s petition, saying that a U.S. Supreme Court decision from 1984 defined a “meeting” subject to the Sunshine Act the same way the agency now defines it.

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After passage of the Government in the Sunshine Act in 1976, the Nuclear Regulatory Commission, acting upon advice from the Department of Justice, adopted sunshine regulations in 1977 defining any discussion among three or more commissioners as a meeting subject to Sunshine Act openness requirements.

But in 1984, the U.S. Supreme Court in Federal Communications Commission v. ITT World Communications ruled that an international conference attended by members of a Federal Communications Commission subcommittee was not subject to the Sunshine Act. The high court said the law’s definition of a “meeting” was not so broad that the Sunshine Act did not have an indefinite reach. Clearly a commission’s members could have preliminary discussions among themselves, the court said.

The next year, the NRC adopted new rules citing that decision. The high court had found that a “meeting” subject to the Sunshine Act must involve discussions that “effectively predetermine official actions.” Discussions between commissioners must be “sufficiently focused on discrete proposals or issues” to cause members to form “reasonably firm positions” before Sunshine Act requirements kick in, NRC noted from the decision.

The 1985, NRC rules defined “meeting” as deliberations of at least a quorum of commissioners where the deliberations determine or result in joint conduct or disposition of official commission business. The new definition required Sunshine Act openness provisions only where discussions focused on discrete proposals or issues causing members to form “reasonably firm positions”.

NRC published the rule as an interim rule immediately effective while it considered numerous public comments from media and public interest groups, all of which objected to the changes. Then the commission took no further action. Although the interim rule remained effective and on the books, the commission continued to adhere to the 1977 rules.

But in February 1995, the Sunshine Act was roundly attacked by 12 commissioners and former commissioners of regulatory agencies who said the burden of meeting publicly stifled the collegiality of the commissions and kept commissioners from having discussions at all for fear of having to meet in public. They asked the Administrative Conference of the United States, an agency which has since been abolished, to recommend changes to the Sunshine Act itself, permitting more collegial discussions among commissioners.

The Administrative Conference held hearings at which a representative of the commissioners’ group told of their unwillingness to discuss issues with each other in public. Jane E. Kirtley, then director of the Reporters Committee for Freedom of the Press, said that problems were caused not by the act but by the unwillingness of the commissioners to adhere to it. The conference was abolished before it made any recommendations to Congress.

In May 1999, NRC announced in the Federal Register that it intended to effect the rules it adopted in 1985 and invited public comment on the new action. The agency announced that it believed that non-Sunshine Act discussions can benefit the agency and thereby benefit the public which the agency serves. Critics of the 1985 rule had been under the misapprehension that numerous discussions held in public would now be held behind closed doors. That was not true, NRC wrote. Because of the Sunshine Act rules, many discussions were now simply not held at all.

The commission said that adherence to the 1985 rules would allow commissioners to evaluate its performance, to have exploratory discussions that might generate ideas, to casually discuss news stories, insights and personal impressions with each other, to receive briefings from staff that do not lead to deliberations and to discuss matters likely to come up before Congress.

In July 1999, NRC announced it would implement the rule and begin holding closed meetings in line with the ITT decision. Until the commissioners’ discussions were likely to begin reaching firm decisions, meetings could be closed.

The Natural Resources Defense Counsel asked the U.S. Court of Appeals in Washington, D.C., to set aside the regulation, or at a minimum find it illegal to implement the rule without minimal procedural safeguards such as requiring minutes of closed minutes so that the decisions to close them can be reviewed in court. The rule requires that minutes be maintained for only six months.

NRC had received numerous objections to the interim rule in 1985. Comments to the rule announced in 1999 were uniformly negative, the public interest group said. Those concerns of public interest groups and the media had never been addressed, NRDC told the court.

It said the new rule allows commissions to close numerous meetings without judicial review of the decisions. Even formal meetings to assess successes and failures would be closed, even though these involve the conduct of “official agency business,” and fall squarely within the scope of the act.

The guiding principle of the Sunshine Act is that the public is entitled to the “fullest practicable” information on agency decision-making. To allow the commissioners themselves to decide unilaterally when the Sunshine Act applies is an affront to the act, NRDC said.

The group said that Congress intended predecisional meetings to be open, noting that Congress did not include an exemption for deliberations as it had in the Freedom of Information Act even though most exemptions mirrored the FOI Act’s exemptions.

The organization said it questioned how NRC commissioners could not begin to form “reasonably firm positions” on the topics they discuss. If they discuss failures in nuclear safety or upcoming issues in nuclear safety, certainly they will be forming opinions, NRDC said, and certainly the public has an interest, protected by the Sunshine Act, in knowing about those deliberations.

One of the first NRC closed meetings was on “hurricane preparedness,” NRDC said. The safety of nuclear power plants in the event of natural disasters could hardly be conducted without a single commissioner forming an opinion, but without a record the public can have no idea of the discussions at the meeting.

NRC responded that it would close only meetings that were “non-deliberative, non-decision-oriented.” Only preliminary and background discussions would take place in closed sessions. And it argued that even though judicial oversight would be limited, congressional oversight would still be possible.

The U.S. Supreme Court has already decided that meetings that do not result in actual deliberations can be closed, the agency said.

In mid-July 2000, a three-judge panel denied the petition for review. Judge Merrick Garland wrote that if the appeals panel could review NRC’s definition of a meeting subject to the Sunshine Act, it might find the NRDC’s arguments persuasive. But the U.S. Supreme Court had already defined “meeting” in ITT.

The high court in that case had interpreted legislative history. The Senate had defined meeting as “deliberations,” rather than previously proposed terms “assembly” or “simultaneous communication” or “gathering.” The high court had recognized, the appeals panel said, that the administrative process cannot be conducted entirely in the public eye. Because it believed that applying the act in contexts such as informal background discussions could actually prevent such discussions — impairing normal agency operations — the high court had concluded that the definition of “meeting” in the Sunshine Act simply did not encompass such discussions, the appeals panel said.

NRDC’s arguments mirrored many adopted by the D.C. Circuit in its decision in ITT that the high court overturned, Garland wrote, but the panel is bound by the high court’s decision and must deny the public interest group’s petition to review NRC’s rules.

The appeals court noted that it could still review individual closures of meetings.