Access to information in the United States through Open Government Laws

Open Government Laws are “founded on the proposition that the government should conduct the public’s business in public.”

Senate Report to 1976 Amendments to FOIA

The Freedom of Information Act (FOIA)

The Government-in-the-Sunshine Act (Sunshine Act)

The Federal Advisory Committee Act (FACA)

The Freedom of Information Act provides a statutory right of access by any person to records of agencies of the federal government.

The Sunshine Act requires certain federal agencies headed by groups to open their meetings to the public.

The Federal Advisory Committee Act provides access to the meetings and records of groups, which include someone outside the government, and which provide advice to the President or a federal agency.

Four fundamentals give the Open Government Laws strength: Disclosure is their main objective. The discretion of the government to withhold information

is restricted. The courts are authorized to independently review an

agency’s refusal to provide access. No deference to agency judgment and the court may review the requested information to determine whether any exemption applies. Attorney fees and costs may be recoverable in an enforcement action.

They are easy to use.

A request should: Reasonably describe the records sought or meeting to be

attended; Be addressed to the appropriate government office; Should reflect that the agency has 20 working days to

respond to a record request, or demand confirmation that access will be provided to an upcoming meeting by a time certain;

May request justification for any denial of access; Request a fee waiver or notification of costs if the agency

expects costs to exceed a certain level; The address to which a response should be delivered.

Two types of public access under the Freedom of Information Act:

Affirmative disclosure provisions that require an agency to publish information about its organization and functions and procedural and substantive rules. They also require access to agency formal opinions, staff manuals, and policy statements.

FOIA also requires agencies to promptly make available any record to any person that does not fall within one of nine exemptions to disclosure. Usually an agency has discretion to disclose a record publicly even if it falls within an exemption. This right of access extends to anyone, regardless of nationality.

There are nine exemptions to the FOIA of which the most popular are: Exemption 5, which protects the candor of government

decision-making (the deliberative process),and which protects privileged information, but which does not exempt final decisions;

Exemption 4, which protects trade secrets and commercial information obtains from persons outside the government;

Exemption 7, which protects law enforcement records under certain circumstances;

Exemption 6, which protects individual privacy; Exemption 1, which protects information classified for national

security reasons, and Exemption 3, which protects records exempted by other federal

statutes other than the FOIA.

All portions of a record that are segregable from exempt portions must be disclosed.

The Government-in-the-Sunshine Act provides the public with a right of access to meetings of agencies administered by a board, commission or other collegial body.

The Sunshine Act is limited to those bodies for which the President with the advice and consent of the Senate appoints a majority of the members, but includes any subdivision authorized to act for the agency.

A “meeting” means the deliberations of at least the number of individual agency members required to take action on behalf of the agency when such deliberations determine or result in the joint conduct or disposition of official agency business. A meeting includes a conference call.

Notice ordinarily must be published by the agency of a meeting at least one week in advance and the notice must provide the basis under the Sunshine Act for closing any portion of such meeting.

There are ten exemptions to the open meeting requirement of the Sunshine Act. Seven are identical to FOIA exemptions. The three exemptions especially created for meetings protect information:

that is likely to involve accusing a person of a crime, or formally censuring a person;

the premature disclosure of which would in the case of financial agencies lead to speculation or endanger the stability of any financial institution or, as to any agency, be likely to significantly frustrate implementation of a proposed agency action; and

that concerns the agency’s issuance of subpoena or participation in litigation, arbitration or an administrative hearing.

The Sunshine Act exemptions apply to the meeting itself and any record thereof.

Unlike the FOIA, there is no deliberative process exemption to the Sunshine Act. Meeting transcripts or minutes must be kept. No meeting may be closed, or minutes of it withheld, on the ground that the agency is engaged in decision-making.

Exemptions to the Sunshine Act must be narrowly construed.

Agencies normally must keep a transcript or electronic recording of any closed agency meeting. For some meetings devoted to financial markets or institutions, special proposed agency action, or agency litigation, an agency may keep full and accurate minutes that include a description of each view expressed and the record of each roll call vote. All documents considered in connection with any agency action shall be identified in such minutes.

All non-exempt portions of the transcript, recording or minutes of any closed agency meeting shall promptly be made public by the agency. The agency shall keep this information available to the public for a period of at least two years after such meeting unless the proceeding to which the meeting relates is not concluded in which case the information shall be kept until a year after the proceeding is concluded.

Public has right to go to court to enforce agency compliance with the Sunshine Act. But the Sunshine Act does not require meetings to be held or public participation in any meeting.

In a lawsuit to enforce the open meetings requirement of the Sunshine Act, the burden is on the agency to sustain its action. The Court may review withheld transcripts, recordings and minutes and make non-exempt portions public. The Court may also cancel a meeting improperly noticed or order it to be opened if the reason for its closure is not lawful. Plaintiffs may recover attorneys’ fees and costs.

“FACA was enacted to cure specific ills, above all the wasteful expenditures of public funds for worthless committee meetings and biased proposals.”

Public Citizen v. Department of Justice, 491 U.S. 440, 453 (1989)

The Federal Advisory Committee Act applies to both the records and the meetings of committees that advise the President or almost any federal government agency.

FACA is intended to open the advisory committee process to public scrutiny and to protect against undue influence by special interest groups over government decision-making.

The membership of an advisory committee must be balanced in terms of points of view represented and the functions to be performed by the committee.

Advisory committee is almost any group established by statute or reorganization plan, or established or utilized by the President or one or more agencies, which has at least one committee member who is not a government employee, and which provides consensus advice rather than the advice of individual members.

FACA does not apply to committees that advise the legislative or judicial branches. Nor does it apply to committees that are primarily operational such as the Bicentennial Commission.

There are usually about 1,000 advisory committees, with some 40,000 members, in existence at the federal government level at any given time.

Advisory committees must be chartered. A charter tells the public the committee’s objectives and duties and the agency responsible for seeing that the committee complies with the law.

Like agencies subject to the Sunshine Act, advisory committees must provide advance notice of, and public access to, their meetings, but are not required to meet.

Meetings of advisory committees must be noticed in the Federal Register 15 days in advance.

Like the Sunshine Act, FACA has no deliberative process privilege. This is true for FACA meetings and records.

FACA provides for advisory committee records to be made available for public inspection before or at the time of the advisory committee meeting to which they apply.

“Interested persons shall be permitted to attend, appear before, or file statements with any advisory committee, subject to such reasonable rules or regulations as the Administrator shall prescribe.

FACA

FACA provides for court challenge to the composition of an advisory committee as too heavily dominated by a particular interest, as well as to the denial of adequate notice or access to any record or meeting.

A FACA violation may be addressed by a complaint brought under the Administrative Procedure Act. Relief may include a request to enjoin the agency from relying upon any advise of the committee operating in violation of FACA.

The General Services Administration is the federal agency responsible for all matters relating to advisory committees. Access http://fido.gov/facadatabase.

Devices to avoid access under the Sunshine Act:

Exemption 3 statute Do not meet or meet only to confirm decision-making Have agency body vote in writing seriatim Have agency administrator visit each member of the head

body for views and votes Have aides to members of the agency’s head body attend

meetings to avoid quorum until final vote Delegate decision-making to administrator Deny access on thin grounds Ignore Sunshine Act requirements

Devices to avoid access under FACA:

Exemption 3 statute Do not meet Direct advice to the Vice-President Present advice as from each member of the advisory

committee Make membership appear fluid Have subcommittee provide advice to committee Give members some governmental status Deny access on thin grounds Ignore FACA requirements

Open government also is undermined by the cost and time involved in enforcing access.