VETO BY NEGLECT: THE FEDERAL ADVISORY COMMITTEE ACT* BARBARA

W.

TUERKHEIMER**

INTRODUCTION

While the Freedom of Information Act (FOIA)I has become well known as an instrument for making the inner workings of government more visible to the private citizen, it comes as a surprise, even to those knowledgeable in the area, that FOJA has a little brother - the Federal Advisory Committee Act (FACA or "Act") 2 - born

six years later in 1972. Unlike most younger brothers, however, this one does not suffer from too much attention or overindulgence; on the contrary, it suffers from neglect. This neglect is unfortunate since FACA has the potential to be an extremely potent and effective weapon for forcing government to deal openly with the public. Although relatively few have used it so far, there is hope that large numbers will soon start to exploit the explosive power of both FACA and the FOIA. For example, last summer, Ray Gallant, managing editor of the trade paper Food ChemicalNews, brought suit under FACA against the United States Treasury Department's Bureau of Alcohol, Tobacco and Firearms.' When he was told by Treasury officials that * Copyright Center for Study of Responsive Law, Freedom of Information Clear-

inghouse. This article is based on a speech given at the Freedom of Information Conference, February 6, 1975, in Washington, D.C. The views reflected in it are the author's and do not necessarily represent those of the Clearinghouse.

** From June, 1974, until August, 1975, the author was employed by the Freedom of Information Clearinghouse, a task force of Ralph Nader's Center for the Study of Responsive Law. She was responsible for the project of monitoring government compliance under the Federal Advisory Committee Act. The project was under the overall supervision of Alan B. Morrison, chief attorney for the Public Citizen Litigation Group, and under the immediate supervision of Ronald L. Plesser from June, 1974, through October, 1974, and Larry P. Ellsworth from October, 1974, until the present. Their assistance and encouragement are gratefully acknowledged. 1. 5 U.S.C.A. § 552 (Supp. 1, 1975), amending 5 U.S.C. § 552 (1970). 2. 5 U.S.C. App. I (Supp. III, 1973), as amended, 5 U.S.C.A. App. I (Supp. 1, 1975). 3. Food Chemical News, Inc. v. Davis, 378 F. Supp. 1048 (D.D.C. 1974).

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several meetings they were having separately with representatives of distilling companies and consumer groups to decide whether to require labelling of chemical additives in liquor would be closed to the press and the public, Gallant obtained a court order prohibiting the Bureau from closing future meetings to him and, presumably, to anyone else. In finding that the Act prevented the government from conducting its business "behind closed doors," the district court in Food Chemical News viewed the right under the Act to report on the manner in which government conducted its business "as among this nation's most sacred protections against tyranny and oppression at the hand of the Executive . . . ."' Thus, the significance of Gallant's victory reaches beyond him and the Treasury Department since it establishes a clear precedent for opening to public scrutiny meetings between private lobbyists and government bureaucrats. This article will present an overview of the Act's background and provisions and a discussion of the primary problems and issues that have arisen under it, including an examination of the case law. Finally, there will be a consideration of certain changes in the Act which its two year history suggests are needed, and a brief proposal of other recommendations necessary for achieving the objectives of the Act. I.

BACKGROUND

Since it is impossible for anyone in government to possess all the knowledge and expertise in a particular field, it has become routine for government officials to seek and obtain advice from the private sector before making decisions. Often they turn to groups for advice. Advisory bodies are not a new phenomenon; perhaps the first federal advisory body or committee was used by President Washington to assist him in dealing with the Whiskey Rebellion.5 Today such committees are a common feature of our government; there are presently over 1200 in existence, dealing with subjects as diverse as peanut growers, wild free-roaming horses and burros and Viet Nam refugees. Many play a major and powerful role in setting government policy. During the 91st Congress subcommittees in both the Senate and House began evaluating the use of advisory committees by the fed4. Id. at 1052. 5. See Sixth Annual Address by President George Washington, Nov. 19, 1794.

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eral government.' An investigation by the Special Studies Subcommittee of the House Committee on Government Operations revealed that there were at least 2600 and possibly as many as 3200 interagency and advisory committees in the federal government costing the taxpayer about $75 million annually, with a total membership of about 20,000 individuals and an assigned staff of approximately 4400 persons.7 Many had such an impact on decisionmaking that they were referred to as the "fifth arm" of the government,' existing alongside the constitutionally-created executive, legislative, and judicial branches and regulatory agencies. These advisory councils often met in sessions that were closed to the public and the press, and frequently it was impossible to even find out when these meetings were scheduled. It was also discovered that many advisory committee reports were ignored or forgotten, that many committees existed in name only and that there was substantial duplication of responsibilities. Even reports of Presidential commissions, some costing well over $1 million to develop, were ignored.' In addition, it was learned that the advisory committee system, as it was then structured, allowed special interest groups to use and abuse their predominant membership on advisory committees to unduly influence government decisionmakers and promote their private concerns. As the Senate Committee pointed out, "Itihe lack of public scrutiny of the activities of advisory committees was found to pose the danger that subjective influences not in the public interest could be exerted on the Federal decisionmakers." 0 Members were frequently appointed to advisory committees for the sole purpose of ratifying decisions already made by agency officials. To remedy this situation, Congress passed the Federal Advisory 6. At the same time, the Office of Management and Budget also became concerned with the proliferation and lack of coordination of advisory committees. During hearings in the 91st and 92d Congresses, OMB informed both the House and Senate Committees that it was in the process of developing a new executive order dealing with management of advisory committees. On June 5, 1972, after the House had passed H.R. 4383, and after the Senate Subcommittee on Intergovernmental Relations unanimously reported S.3529, each the forerunner of FACA, the President proclaimed Executive Order 11671. This Order contained to some degree concepts embodied in H.R. 4383 and S. 3529, although it was much less inclusive. 7. H.R. REP. No. 1731, 91st Cong., 2d Sess. 14-15 (1970). 8. Hearingson PresidentialAdvisory Committees Before the Subcomm. on Special Studies of the House Comm. on Gov't Operations,91st Cong., 2d Sess., pt.2, at 1, 2, 54, 107 (1970). 9. H.R. REP. No. 1731, 91st Cong., 2d Sess. 10-17 (1970). 10. S.REP. No. 1098, 92d Cong., 2d Sess. 6 (1972).

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Committee Act on October 7, 1972. The Act had six basic purposes: first, to establish standards and uniform procedures to govern the creation, operation and termination of federal advisory committees; second, to insure that whenever possible, advisory committee meetings would be accessible and open to the public; third, to streamline the process, both in terms of numbers and cost of committees; fourth, to provide for balanced membership on committees, thereby eliminating the prevalent practice of having private interests be the sole spokesmen on advisory bodies making recommendations affecting those interests, and preventing agencies from appointing advisory committees with the sole objective of having them ratify conclusions already reached; fifth, to keep the public and the Congress informed with respect to the number, purpose, activities, membership and costs of advisory committees; and sixth, to assure that the function of advisory committees be advisory only, so that all decisions would ultimately be made, in accordance with law, by a responsible government official." H.

PROVISIONS

FACA provides for a system governing the establishment, operation, administration and duration of advisory committees utilized by agencies and departments in the Executive Branch.2 The Act contains direct requirements, delegates responsibility to designated bodies of government and directs the Office of Management and Budget to promulgate guidelines for implementation of the Act by departments and agencies. 3 Each will be discussed in turn. A. Direct Requirements The Act has several key provisions. Any "committee, board, commission, council, conference, panel, task force, or other similar group" composed of members who are not full-time officers or employees of the Government, established or utilized for advice or recommendations by the President or any federal agency or depart11. 5 U.S.C. App. I, § 2(b) (Supp. III, 1973). 12. The independent regulatory agencies also come under the Act's coverage. For an interesting discussion in opposition to including these agencies within the purview of the Act see H.R. RaP. No. 1017, 92d Cong., 2d Sess. 18-19 (1972) (individual views of Representative John E. Moss). 13. 5 U.S.C. App. I, § 7(c) (Supp. 11, 1973). 14. Id. § 3(2).

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ment 8 must hold its proceedings open to the public." Adequate advance notice of the meetings must be given by an announcement in the FederalRegister,17 and any member of the public is given the right, subject to reasonable regulations, to attend, file a written statement, or appear before any advisory committee." Detailed minutes of each meeting, including a record of the persons present, a complete description of matters discussed and conclusions reached, and copies of all reports utilized or written by a committee, must be kept. 9 Except in certain narrowly defined situations, the records, transcripts, minutes, working papers or any other documents utilized or prepared by any advisory committee must be made available for public inspection and copying."0 Transcripts, if kept, must be made available to any person at actual cost of duplication." In addition to these operational standards, the Act, through a reporting and charter filing requirement, 22 requires identification of the location, functions and objectives, annual operating costs, number of meetings and termination date of every advisory committee. It also requires that those committees in existence be specifically justified or be discontinued, and sets up procedures for the termina23 tion, continuation and renewal of advisory committees. To accommodate its concern that special interest groups might use their membership on advisory committees to influence government decisionmakers and promote their private concerns without any input from competing interests, 24 FACA requires a balanced representation of points of view on advisory committees,2 requires a designated federal official to chair or attend each meeting26 and 15. An advisory committee can be established by statute or reorganization plan, by executive order or proclamation, or by an agency or department. Id. 16. Id. § 10(a)(1). 17. Id. § 10(a)(2). 18. Id. § 10(a)(3). 19. Id. § 10(c). 20. Id. § 10(b). 21. Id. § 11(a). 22. Id. § 9(c). 23. 5 U.S.C.A. App. I (Supp. 1, 1975) amending 5 U.S.C. App. I (Supp. IR, 1973). 24. Compare S. REP. No. 1098, supra note 10, at 6, with H.R. REP. No. 1017, supra note 12, at 6. 25. 5 U.S.C. App. I, §§ 5(b)(2), 5(c) (Supp. 11, 1973). 26. Id. §§ 10(e), (f).

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specifically limits the role of advisory bodies to giving advice only,2" thereby resting the ultimate responsibility for decisionmaking in the hands of accountable public officials. As is the case with all laws, Congress recognized that there must be some exceptions, and that, in certain circumstances, the public interest may require that some meetings of advisory groups be closed to the public and that committee records and documents be withheld. To accommodate this concern, the Advisory Committee Act incorporates by reference the nine exemptions of the Freedom of Information Act and makes these the only legitimate bases for closing a meeting." However, to close all or part of a meeting, the President or the head of the agency to which the advisory committee reports, must determine, in writing, that the meeting will be concerned with one or more matters covered by the nine exemptions.29 27. Id. §§ 2(b)(6), 9(b). 28. Id. § 10(d). The nine exemptions to the Freedom of Information Act, found at 5 U.S.C.A. § 552(b), (Supp. 1, 1975), amending 5 U.S.C. § 552(b) (1970), include matters that are: (1) (A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order; (2) related solely to the internal personnel rules and practices of an agency; (3) specifically exempted from disclosure by statute; (4) trade secrets and commercial or financial information obtained from a person and privileged or confidential; (5) inter-agency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the agency; (6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy; (7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication, (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source, (E) disclose investigative techniques and procedures, or (F) endanger the life or physical safety of law enforcement personnel; (8) contained in or related to examination, operating or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or (9) geological and geophysical information and data, including maps, concerning wells. 29. 5 U.S.C. App. I, § 10(d) (Supp. 1m, 1973).

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If such a determination is made, the committee must issue an annual report 0 summarizing its activities so that, in no event, is the public completely in the dark about the committee. It is clear, however, that Congress intended that closed advisory committee meetings be the exception and not the rule and that, in the words of the Senate Report, "the standard of openness and public inspection of advisory committee records is to be liberally construed."'" B.

Responsibilities Delegated Under The Act

The specific standards and procedural requirements set forth in FACA are complimented by the delegation of certain responsibilities to the President, the Congress, agency heads, the Library of Congress and the Director of the Office of Management and Budget. The responsibilities of the President under the Act " include reporting to the Congress about the President's action with respect to recommendations contained in public reports of presidential advisory committees 33 and the preparation of an annual comprehensive report to the Congress on the activities, functions, status and membership of advisory committees.34 The Act also directs each standing committee of the Congress to make a continuing review of the functions and responsibilities of each advisory committee under its jurisdiction. 3' Agency heads are responsible under the Act for, among other things, establishing uniform administrative guidelines and management controls for their advisory committees36 and for designating an Advisory Committee Management Officer37 who, in turn, supervises the operation of the agency's committees. 38 In addition, FACA establishes the Library of Congress as a depository for advisory committee reports and papers in order that they be centralized and available for public inspection 30. Id. 31. S. REP. No. 1098, supra note 10, at 14.

32. 5 U.S.C. App. I, § 6(a) (Supp. I, 1973). By Executive Order 11,686, issued on October 11, 1972, the President delegated the functions vested in him by the Act to the Director of OMB. Exec. Order No. 11,686, 3 C.F.R. 351 (1974). 33. 5 U.S.C. App. I, § 6(b) (Supp. IH, 1973). 34. Id. § 6(c). Executive Order 11,769, issued on February 21, 1974, delegated responsibility for preparation of the Annual Report to the Administrator of the General Services Administration. Exec. Order 11,769, 39 Fed. Reg. 7125 (1974).

35. 5 U.S.C. App. I, § 5(a) (Supp. 1I,1973). 36. Id.§ 8(a). 37. Id.§ 8(b). 38. Id.§ 8(b)(1).

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and use." To combat the existing problem of a lack of central control and responsibility, the Act establishes within the Office of Management and Budget the Committee Management Secretariat with general responsibility for overseeing the advisory committee system.,' The Committee Management Secretariat has a broad mandate: aside from seeing that the intent of the Congress in enacting the Act is effectuated, the Secretariat has the specific responsibility for promulgating administrative guidelines and management controls for committees4 and for conducting an annual comprehensive review of the activities and responsibilities of each advisory committee 2 to assist the President with his annual report to the Congress. C. OMB Guidelines Pursuant to its oversight obligations, OMB drafted Circular No. A-6343 which purports to provide guidance to federal agencies and departments for implementation of the Act. After stating the general tenets that advisory committee meetings should be open to the public, that exceptions should be kept to the minimum, carefully grounded in law and explained in detail, and that the emphasis should be on the free flow of information to the public," the guidelines discuss general responsibilities under the Act and then detail certain procedures dealing with the operational requirements of the Act. For the most part, the guidelines are vague, general and ineffective in terms of setting concrete standards for agencies to follow. Specific sections will be referred to below in the discussion of the problems and issues that have arisen under FACA. 39. Id. § 13. 40. Id. § 7(a). The Committee Management Secretariat is located in Management and Operations under the Evaluation and Program Implementation Division. As of February 1, 1975, the staff was made up of two senior professionals, one junior professional and a secretary. There was no attorney on the staff. The Director of OMB delegated his functions under the Act and under the Executive Order 11,686 to the Committee Management Secretariat in OMB Circular No. A-63, Revised December 26, 1972, and the OMB/Department of Justice Memorandum on Implementation of the Federal Advisory Committee Act, 38 Fed. Reg. 2306 (1973). 41. 5 U.S.C. App. I, § 7(c) (Supp. 111, 1973). 42. Id. § 7(b). 43. OMB Circular No. A-63, Revised March 27, 1974, on file at Center for Study of Responsive Law [hereinafter cited as OMB Guidelines]. 44. Id. § 3(a).

FEDERAL ADVISORY COMMITTEE ACT

1975] III.

PROBLEMS AND ISSUES UNDER THE

AcT

Before considering the problems and issues that have arisen under the Act, it is important to initially acknowledge that some agencies are making a strong and good faith effort to conform to the provisions and spirit of FACA. For example, the Consumer Product Safety Commission publishes the weekly Public Calendar which notifies the public of the daily activities of its advisory committees." In addition, the Calendar gives advance notice of all meetings, even though they may not technically be advisory committee meetings, involving substantial matters of interest between members of the agency staff and outside parties. Almost every meeting is open; closed meetings are possible only under restricted conditions. Similarly, the Corps of Engineers has recently revamped certain of its procedures so as to comply with the law.4" Generally, most advisory committee meetings are now being publicly announced, many of them are open, and public awareness of their activities is on the rise. However, after one year of monitoring government compliance under the Act, the author has reached the disturbing conclusion that the Government is far from the kind of reform that Congress had in mind when it enacted the law. FACA, designed to open the advisory committee process to the public, has been undermined and eroded by non-administration, non-use and ingenious bureaucratic techniques of evasion. In short, it has been vetoed by neglect. A plethora of evasive techniques and subterfuges designed to flout the Act's requirements have developed during the two years FACA has been in existence. Many agencies are defying the Act by systematically and routinely ignoring its purposes and violating its provisions. This defiance is encouraged by the approach of the new Director of the Advisory Committee Secrertariat at OMB, who has said that because the Act is only two years old agencies must be given time to learn how to live with it." The absurdity of this statement speaks for itself; the Government should not be granted a two-year grace period before complying with federal law.48 45. Consumer Product Safety Commission Public Calendar, published weekly by the Consumer Product Safety Commission, Washington, D.C. 46. Letter from Col. James L. Trayers to Barbara W. Tuerkheimer, Jan. 14, 1975. 47. Interview with William Bonsteel, Director, OMB Committee Management Secretariat, in Washington, D.C., 1975.

48. If it takes two years to comply with the law, we have been wasting the $31

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Statistics demonstrate the problem of government noncompliance. Two years after the enactment of a law which requires that "each advisory committee meeting shall be open to the public,'", more than 45 percent of the 932 advisory committee meetings announced in the Federal Register over a three-month period (August through October 1974) were closed in whole or in part." To make matters even worse, approximately one-third of the closed meetings were closed without reference to any exemption to the Freedom of Information Act, as FACA and OMB guidelines specifically require. " It taxes credulity to believe that a bureaucrat requires two years to learn that a reason must be given when a meeting is closed. An examination of concrete examples of agency avoidance techniques follows. A.

The FOIA Exemptions

One of the greatest problems that has arisen under FACA is that many agencies are illegally hiding behind overbroad interpretations of the FOIA exemptions. FACA requires that all advisory committee meetings be open to the public unless one or more of the nine FOIA exemptions is applicable. These exemptions, which were designed to protect written documents and are themselves the subject of considerable dispute, cause serious problems when applied to advisory committee meetings and have thus been frequently used by resourceful agency administrators as tools to keep committee doors unnecessarily sealed. For example, exemption one5" has been subject to abuse by agenmillion spent annually to implement this legislation. See 2 FEDERAL ADVISORY COMM. ANN. REP. (1973).

49. 5 U.S.C. A. I, § 10(a)(1) (Supp. III, 1973). 50. Statistics compiled by the author. See 39 Fed. Reg. 27,787-37,049 (1974). Out of approximately 932 meetings, 423 were closed in whole or in part. 51. The Federal Advisory Committee Act requires that a determination to close a meeting must be in writing and contain the reasons for such determination. 5 U.S.C. App. I, § 10(d) (Supp. m11, 1973). The OMB guidelines require that the determination be in writing and state the specific reasons for closing all or part of the meeting. A memorandum from Frederick V. Malek, Deputy Director of OMB, to the heads of executive departments and agencies concerning these guidelines, states that exceptions to open meetings should be held to the minimum, carefully grounded in law, and explained in detail. Memorandum from Frederick V. Malek on file at Center for Study of Responsive Law. 52. 5 U.S.C.A. § 552(b)(1) (Supp. 1, 1975), amending 5 U.S.C. § 552(b)(1) (1970).

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cies looking for a loophole. The label "national security" is often routinely stamped on any "sensitive" material even though national security is really not involved. 3 It is not uncommon to find that members of an advisory committee whose meetings are closed on national security grounds do not even have a security clearance. The general public has equal right to be privy to "classified" information as any non-cleared committee member. Exemption two applies to "matters that are . . . related solely to the internal personnel rules and practices of any agency" 54 and was designed to cover such administrative matters as the personnel's use of parking facilities or regulation of lunch hours, 55 but it is the shield behind which the Civil Service Commission's important Federal Pay Council and Federal Prevailing Rate Advisory Committee56 hide. Exemption four shields "trade secrets and commercial or financial information obtained from a person and privileged or confidential information. ' 57 Meetings are frequently closed on the basis of exemption four when the members of the advisory committee itself are all concerned, major competitors. A meeting may be closed under exemption four if the documents involved contain information that would be likely to cause substantial harm to the competitive position of the submitter of the information. Reliance on this exemption when all interested members of the public are at the meeting ignores the basis and intent of the exemption. Whatever 53. In light of the recent February amendment to exemption 1 of the FOIA, it may be more difficult to illegally hide behind this exemption. See note 52 supra. Prior to the amendment, the only requirement was that a document be specifically authorized under criteria established by an executive order to be kept secret in the interest of national defense or foreign policy. There is now the additional requirement that the document be in fact properly classified pursuant to such an executive order. 54. 5 U.S.C. § 552(b)(2) (1970). 55. S. REP. No. 813, 89th Cong., 1st Sess. 8 (1965). 56. The Federal Prevailing Rate Advisory Committee studies the process of comparing and adjusting the federal pay rates of wage-board or blue-collar workers with the pay rates in private enterprise and ultimately formulates policy recommendations for the Civil Service Commission. The Federal Employees Pay Council advises the Commission on a wide variety of issues relating to the comparability of the wage levels paid to government employees with those paid for similar levels of responsibility and job characteristics in private enterprise. 57. 5 U.S.C. § 552(b)(4) (1970). 58. National Parks and Conservation Ass'n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974).

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residual and minimal interest in confidentiality remains after major competitors have evaluated the information does not warrant closing the meeting. The greatest problem, however, both in conceptual and practical terms, is the role of exemption five of the FOIA when applied in a FACA setting. The fifth exemption covers "inter-agency or intraagency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency."', Approximately one-sixth of all closed meetings have relied on this exemption. 0 This figure is remarkable since in the five cases where the legitimacy of this exemption under FACA was in issue, the courts have uniformly held that exemption five cannot be invoked to protect advisory committee deliberations. 1 Both the statutory language and common sense support this as the only correct result. Exemption five protects "inter- and intra-agency" communications, but advisory committees are not agencies and clearly committee documents are not agency documents. The transfer of a bona fide agency document to an advisory committee, composed of members who are not full-time officers or employees of the federal government, constitutes a waiver of governmental privilege for secrecy. Any other result would create a senseless loophole through which an agency always could push an internal document and thereby close the meeting." Several agencies have also established the practice of closing 59. 5 U.S.C. § 552(b)(5) (1970). 60. Of approximately 423 meetings closed in whole or in part announced in the FederalRegister during the three month period, 67 relied on exemption 5. See note 50 supra. 61. Aviation Consumer Action Project v. Washburn, Civ. No. 73-1838 (D.D.C. Sept. 10, 1974), appeal docketed, Civ. No. 75-1086 (D.C. Cir., Feb. 3, 1975); Don't Tear It Down, Inc. v. Sampson, Civ. No. 74-381 (D.D.C., April 16, 1974); Nader v. Dunlop, 370 F. Supp. 177 (D.D.C. 1973); Gates v. Schlesinger, 366 F. Supp. 797 (D.D.C. 1973). The most recent is Wolfe v. Weinberger, Civ. No. 74-454 (D.D.C. Oct. 31, 1975). 62. This seems to have been what the Department of Commerce did in Aviation Consumer Action Project v. Washburn, Civ. No. 73-1838 (D.D.C. Sept. 10, 1974). In its appellate brief (at 4), the government admits that even though it does not believe that a written memorandum was necessary in order to close the meeting on the basis of exemption 5, it took the "precautionary measure" of preparing a memorandum to make certain that they were complying with FACA. The court in Gates also recognized the possibility of this abuse. The court stated, "To allow the 'concerned with' language to be so broadly construed would allow the sponsoring agencies to close all advisory committees to the public by placing some 'internal matters' on the agenda." 366 F. Supp. at 799.

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meetings because a written transcript of the discussion would fall within exemption five; those agencies argue that it is essential to close the meeting "to protect the free exchange of internal views and to avoid undue interference with the operations of the Council," 3 or in order to have "frank and open discussion"" or to protect an "exchange of opinions of the Subcommittee members and internal deliberations and formulation of recommendations." 5 When it 63. Determination made on July 19,'1974, by Robert R. Garvey, Jr., Executive Director, Advisory Council on Historic Preservation, to close a portion of meetings of the Council on August 7 and 8, 1974. See also 39 Fed. Reg. 39,110 (1974), where a notice states that a Veterans Administration Advisory Committee meeting will be closed because "Exemption 5 (5 U.S.C. § 552(b)(5)), of the Freedom of Information Act, protects the candid exchange of views anticipated in this subcommittee's deliberations." 64. 40 Fed. Reg. 1753 (1975). 65. 39 Fed. Reg. 35,701 (1974). The following explanation was given for invoking exemption 5 to close an "executive session" meeting of the Civil Service Commission's Advisory Committee on Federal Pay: The Committee consists of experts in the field of labor relations and pay policy; since they are generally recognized for their impartiality, their initial views may well be diverse. In order to facilitate the development of consensus recommendations, the members must be free to take tentative and subjective positions, to be frank and candid about their views, to negotiate, make assumptions, and reach conclusions arguendo. Only in a closed meeting can the Committee have this freedom because an open meeting would inhibit members; it would encourage complete consistency across numerous issues, which militate against bargaining and compromise. These deliberations of the Committee are analogous to the development of policy within an agency exercising specific functions. The development of policy frequently involves a similar exchange of viewpoints and ideas which would be inhibited by public disclosure. 39 Fed. Reg. 31,544 (1974). These explanations originate from the OMB Guidelines which provided the agencies with a series of rationales that permitted or encouraged agencies to disregard FACA's open meeting requirements and to invoke exemption 5 at will. This section, which provided in pertinent part as follows, is no longer in effect: (C) If a meeting will be such that neither (A) nor (B) above furnishes a basis for closing it, the meeting shall be open to the public (unless paragraph 10a(3)(c)(i) relating to national security applies): Provided, That such a meeting (or portion of a meeting) may be closed if the agency head, or the Director (in the case of a Presidential advisory committee) determines that the meeting (or portion) will consist of an exchange of opinions, that the discussion if written would fall within exemption (5) of U.S.C. 552(b) and that it is essential to close such meeting (or portion) to protect the free exchange of internal views and to avoid undue interference with agency or committee operation. OMB/Department of Justice Memorandum on Implementation of the Federal Advisory Committee Act, supra note 40, § 10(c)(iii)(C).

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passed the Act, however, Congress made the basic policy decision that to whatever extent "open meetings" conflicted with "frank and open discussion," openness was more important. It is totally beyond the lawful powers of a bureaucrat to reverse these priorities. Allowing an agency to close meetings because of the alleged inhibiting effect of open meetings would enable the exemption to swallow the rule and emasculate FACA. For these reasons, the unanimous judicial view that exemption five is inapplicable to FACA should not be surprising. In Gates v. Schlesinger the Department of Defense argued that its Defense Advisory Committee on Women in the Service (DACOWITS) was itself an agency or part of an agency, and sought to protect an "exchange of views in policies" 6 which, if written, would fall within exemption five. The court responded that DACOWITS did not fit the definition of an agency and that the committee was not an internal organ, but, by its very nature, a group of "outsiders" called upon because of their expertise to offer views and comments that would be unavailable within the agency. The opinion voices the concern that an acceptance of the Defense Department's broad interpretation of exemption five "would clearly fly in the face of Congressional intent." 7 More recently, the court expanded the temporary injunction into permanent relief, declaring that exemption five "cannot be used to prohibit plaintiffs and the public from attending and appearing before any DACOWITS meeting or session.""8 The court in Nader v. Dunlop 9 likewise found that the Cost of Living Council's use of exemption five to hide discussions of the Food Industry Advisory Committee, the Food Industry Wage and Salary Committee, and the Health Advisory Committee was incompatible with FACA and concluded that it "would not allow the door to close on these meetings when Congress has expressly ordered the door be open except on the rarest occasions."7 66. 366 F. Supp. at 798. 67. Id. at 799. 68. Civ. No. 73-1864 (D.D.C., June 18, 1974). 69. 370 F. Supp. 177 (D.D.C., 1974). 70. Id. at 179. Two former senior officials of the Cost of Living Council (the defendant in Nader v. Dunlop) have recently authored a law review article which is critical of that and other similar decisions. Perritt and Wilkinson, Open Advisory Committees and The PoliticalProcess:The FederalAdvisory Committee Act After Two Years, 63 GEo. L.J. 725 (1975). They suggest that exemption 5 need not be given an all or nothing interpretation - either allowing the closing of all meetings or being unavailable as a justification for closing any meetings. Instead, they pro-

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In Don't Tear It Down, Inc. v. Sampson71 the court rejected the Advisory Council on Historic Preservation's reliance on exemption five to close its meetings and ordered production of the tape recording and transcripts of a closed executive session.7 1 In Aviation Consumer Action Project v. Washburn73 the Department of Commerce Travel Advisory Board was prohibited from invoking exemption five as a basis for closing any of its meetings or to protect an intraagency memorandum which was voluntarily disclosed by the agency 74 to an advisory committee.

Each of these opinions is a district court opinion. The government has, however, decided to appeal Aviation ConsumerAction Project. If the District of Columbia Circuit follows the lower court decisions, the government will have an even weaker claim for invoking exemption five than at present. B. The Ad Hoc and Informal Subgroup Dodge Statistics showing that almost half the meetings are still closed in whole or in part do not, however, fully reveal the extent to which FACA has been ignored. Statistics are based on known meetings. fess faith in the ingenuity of courts in making delicate distinctions. Unfortunately, they failed to suggest any discernable basis for making such distinctions, except perhaps the importance of the committee's discussions to the agency's decisionmaking process. Id. at 744-45. 71. Civ. No. 74-381 (D.D.C., April 16, 1974). 72. The court neatly summarized the reasons for rejecting the agency's exemption 5 defense: First, it would seem that the Advisory Council [on Historic Preservation] is not an agency within the meaning of [FOIA] cases cited by defendants. Second, the Council was under an obligation to meet in open rather than closed session pursuant to the Federal Advisory Committee Act, 5 U.S.C. Appendix I, § 10 (a)(1). It is the conclusion of this court, that where the Advisory Council has met in closed session, plaintiffs are entitled to the tape recording of those proceedings. This conclusion is supported by § 11 of the Advisory Committee Act, which requires advisory committees to make available to any person transcripts of meetings. Id. 73. Civ. No. 73-1838 (D.D.C., June 18, 1974). 74. Id. In response to a number of specific abuses, the district court broadly declared that the Department of Commerce can not close any advisory committee meetings on the basis of exemption 5; before closing meetings on other grounds it must publish in the Federal Register a written determination of its reasons; all meetings must be announced in the Federal Register at least 30 days before the meeting; and a verbatim transcript must be kept of all meetings of the Travel Advisory Board.

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Some groups do not even bother to publish an announcement in the Federal Register, oftentimes because they consider themselves "merely" subcommittees or groups not subject to the Act. Two cases have squarely held that the Act embraces more than those committees "established" by the Executive Branch or committees dealing regularly with the Executive. In Aviation Consumer Action Project v. Yohe 5 the district court declared an ad hoc CAB meeting with airline representatives, called to deal with but one specific problem, to be subject to the notice and openness requirements of the Advisory Committee Act, and enjoined CAB from holding such unannounced meetings in the future. The court in Food ChemicalNews" held that the two separate "informal" ad hoc meetings between Treasury Department officials and consumer and distilled spirits industry representatives were meetings of "advisory committees" utilized to obtain advice within the meaning of section 3(2) of FACA and that they were therefore subject to the Act. Indeed, any other result would fly directly in the face of the statute which includes in the definition of advisory committee "any committee . . . panel. . . or other subgroup thereof. . . which is... utilized by one or more agencies in the interest of obtaining advice or recommendations .... "977 C.

RestrictedAccess Techniques

The statistics also veil the subtle practice of restricting access to a meeting which on its face appears entirely open. Phrases such as "attendance is limited to space available"7 - which in many cases is clearly inadequate - and "facilities and space for accommodating members of the public are limited, and persons will be accom75. Civ. No. 73-707 (D.D.C., June 24, 1974). 76. Food Chemical News, Inc. v. Davis, 378 F. Supp. 1048 (D.D.C. 1974). 77. In Nader v. Baroody, Civ. No. 74-1675 (D.D.C., June 23, 1975), however, the district court found that regular meetings held between the President and various groups representing different segments of society were not advisory meetings within the meaning of the Act. The case is distinguishable from the others in that it involved meetings which the district court determined were held not for any specific purpose or to deal with a specific problem but rather for the general purpose of enhancing communications between the Executive and the public. Some of the meetings ended without advice being given or recommendations being made. Also, in Lombardo v. Handle, Civ. No. 74-431 (D.D.C., July 28, 1975), the district court held that the Committee on Motor Vehicle Emissions does not come under FACA's coverage since it advises the National Academy of Science, a private entity expressly found not to be an agency of the United States Government. 78. 40 Fed. Reg. 7478 (1975).

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modated on a first-come, first-served basis"79 often appear intended to, and in fact do, discourage public participation. Moreover, the location of a meeting in a restricted area such as the Executive Office Building, State Department or Pentagon further serves to reduce public attendance." 79. 39 Fed. Reg. 38,264 (1974). 80. A notice was given that the meeting of the Department of the Army Advisory Committee on Women in the Service was to be held in the Pentagon and that persons wishing to attend had to call at least five days in advance to arrange an escort to meet the members of the public and take them to the meeting. When a call was made requesting an escort, callers were told that no escorts would be available. Oversight Hearings on Public Law 92-463 Before the Subcomm. on Budgeting, Management and Expenditures of the Senate Comm. on Gov't Operations, 93d Cong., 1st & 2d Sess.(1973-1974) (testimony of Ronald L. Plesser) [hereinafter cited as Oversight Hearings]. Senator Metcalf relates the following incident about the efforts of two of his staff members to gain admittance to a "public" advisory committee meeting of the Energy Research and Development Advisory Council: A notice appeared in the October 10, 1973 Federal Register announcing a meeting of the Energy Research and Development Advisory Council to be held on October 11, 1973, in the Old Executive Office Building for the purpose of discussing matters related to national energy research and development policy programs. Members of the public would be admitted "up to the limits of the capacity of the meeting room" and were requested to inform the Executive Secretary of the Advisory Council prior to October 11 of their intention to attend. 38 Fed. Reg. 27,955 (1973). Vic Reinemer and E. Winslow Turner, staff director and chief counsel, respectively, of Sen. Metcalf's Subcommittee on Budgeting, Management and Expenditures learned of the meeting on October 11, whereupon they telephoned the Council's Executive Secretary. Even though they were told that no seats would be available at the meeting, they went over to the Executive Office Building. When they arrived at the meeting room, Messrs. Reinemer and Turner showed their Senate credentials to the officers of the Executive Protective Service. They were once again denied admittance and were told to call the Executive Secretary's office. When they did this, they were told that he was in a meeting room which had no phone (although there was in fact a phone in the room) and that the meeting which had begun at 11:15 had been adjourned (at 11:25), although it had not been adjourned. While Mr. Turner called Mr. Hawley, the Director of OMB's Committee Management Secretariat, Sergeant Fioramanti of the Executive Protective Service questioned Mr. Reinemer about bothering the Executive Secretary's secretary with phone calls and - while a plainclothesman loaded his revolver in the background - emphasized that the Old Executive Office Building was one place in town where no public meetings were held; if anybody had called a public meeting there their intention undoubtedly was to not have the public attend. By noon - 45 minutes after they had arrived for the 11:15

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Similarly, the meeting may be held in a totally inaccessible place despite OMB's requirement that meetings be held in places "reasonably accessible"8 and convenient to the interested public. "Public" meetings have been held in the Exxon Building in New York and the U.S. Steel Building in Pittsburgh where access is restricted and a pass required for entry. When the author telephoned the Advisory Committee Officer at the National Endowment for the Arts to protest the closing of almost all of its meetings, she was informed that she was welcome to attend one of its rare open meetings, to be held in Puerto Rico.82 Likewise, a Council on Environmental Quality Committee meeting was held in the convenient and "reasonably accessible" place of Dusseldorf, Germany.8 3 And, in what is a most lucid illustration of the evils the Act was designed to avoid, a subcommittee of the National Industrial Pollution Control Council met on Mr. Evinrude's yacht.84 Finally, another problem hidden by the figures deals with the meeting - Mr. Reinemer and Mr. Turner were admitted to the meeting through the personal intercession of Mr. Hawley. Chairs were available. See 119 Cong. Rec. S 19,371 (daily ed. Oct. 18, 1973) (remarks of Senator Metcalf). 81. Section 8(c)(1) of OMB Guidelines, supra note 43, requires that advisory committee meetings be held at a "place that is reasonably accessible to the public." 82. Telephone interview with Mrs. Luna Diamond, Advisory Endowment for the Arts; see Will, The Arts: Paying the Piper,Wash. Post, Nov. 5, 1974, § A, at 19, col. 1. 83. 39 Fed. Reg. 37,807 (1974). The CEQ's choice of Dusseldorf as a meeting place seems to be illustrative of its attitude towards the spirit of open government embodied in FACA. Recently, a notice appeared in the FederalRegister, announcing a meeting of CEQ advisors to be held on February 14, 1974, 8 days after the announcement. Part of the announcement merits reproduction, because it typifies the bureaucratic technique of discouraging public attendance and ignoring the spirit of the FACA. A limited number of seats - approximately 10 - will be available to observers from the press and public on a reserved, first-come basis. Requests to attend this meeting must be submitted in writing or by telephone no later than Thursday, February 13, 1975, to Lawrence N. Stevens, Executive Director, Citizens' Advisory Committee on Environmental Quality, 1700 Pennsylvania Avenue, NW, Washington, D.C. 20006, telephone (202) 233-3040. Oral statements or questioning of Committee members or other participants by observers in attendance at the meeting will not be permitted. Members of the public may file written statements with the Committee before or after the meeting. 40 Fed. Reg. 5556 (1975). 84. Oversight Hearings, supra note 76, at 88 (report of Professor William E. Rodgers, Jr., Professor of Law at Georgetown University Law Center).

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ability of a committee, through manipulation of the agenda of a partially closed meeting, to effectively exclude the public from decisionmaking. Where a meeting is announced as partially open, the open portion, perhaps one half hour, may involve such "vital" matters as "plans for future meetings" or "administrative reports.",, Another practice is that used by several Department of Commerce committees and the Advisory Council on Historic Preservation. These committees appear to have completely open meetings; for example, there may be public discussion of agenda items one through five and only item six will be closed. In fact, item six is merely a private executive session discussing items one through five." Is there any question that under these circumstances, the public participates in nothing of substance when recommendations and advice are formulated? D.

Games Between Agency Staff and Committee Members

Other examples further serve to illustrate the exceptional reluctance of our federal agencies and departments to comply with the Act. After a strict policy of closed meetings and much pressure to open up meetings, the Civil Service Commission's Federal Pay Council announced that its meetings were henceforth to be open. When the author arrived at the first scheduled open meeting, she found a sign at the door announcing that the meeting was cancelled. Following several unconvincing explanations, several announcements of open meetings, and several cancelled meetings, the author discovered that the committee members refused to meet in the open and that there would be a return to a closed meeting policy. In other instances, while agency staff insisted that committee members wanted closed and uninhibited deliberations, committee members confided that they had no objection whatsoever to open meetings; rather, it was agency staff who wanted closed meetings.8 7 85. 39 Fed. Reg. 37,084 (1974). 86. See, e.g., 39 Fed. Reg. 26,773 (1974): "The Council will receive reports and statements on the undertaking in open session and then formulate its comments in executive session. The executive session will be closed to the public .... " 87. An interesting example of this phenomenon is reported in the testimony of Ronald L. Plesser, Oversight Hearings, supra note 80, at 64. Mal Schecter, the editor of Hospital Practice magazine, asked to attend a closed meeting of the Tuskegee Syphilis Advisory Committee. The committee had been created in response to public outrage over the discovery that for 40 years the United States Health Service had been conducting a study of several hundred black males suffering from syphilis; the Service deliberately left them untreated although an effective

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Another problem, which has been referred to as an agency's "cavalier" use of its advisors,88 deals with the agency practice of ignoring unfavorable advice. One of the purposes of the Advisory Committee Act is to insure that recommendations of committees are not ignored. A recent issue before the Food and Drug Administration required deciding whether to continue a moratorium on the Dalkon Shield, an intrauterine device, whose use had been linked to deaths, infections and spontaneous abortions. An advisory panel urged the FDA to continue to ban the shield's distribution until better data on its safety were gathered. In rejecting this advice, FDA Commissioner Dr. Alexander Schmidt said, "We can only get the answers by continued use of the device,"" which he then approved. One of the panel members, a doctor, then resigned because he felt that the panel's recommendation made no impact on Dr. Schmidt. 0 cure had been available for decades. Schecter was told he could not come, but after losing a court fight to gain entry, he decided to go to the meeting room anyway. As the members were coming in, he explained what had happened. They were mystified because they knew of no reason for closing the meeting, and Schecter was invited in. The Chairman of the meeting, an NIH official, announced that although the rest of the Committee had wanted the meeting open, he wanted the meeting closed. He then left the chair, saying he could not proceed with an open meeting. The meeting continued with another government official presiding. A variation of this phenomenon was related by Stanley Cohen, the Washington editor of AdvertisingAge magazine, and Mark Lynch, an attorney for the Freedom of Information Clearinghouse, at the Clearinghouse's Freedom of Information Conference on February 6, 1975. Mr. Cohen told of his concern with an advisory committee to the Federal Trade Commission that had frequently met in secret with the Grocery Manufacturers of America. When Cohen learned that a meeting was beginning he promptly sent a reporter to the place of the meeting. The reporter was denied admittance and when he attempted to enter by turning the doorknob, he was physically pulled away from the door. Mr. Lynch, who was at the meeting with other representatives of consumer groups, stated that when the people inside the room were told (at the end of the meeting) about the Advertising Age reporter being barred, they were appalled and asked that any future meetings be open. 88. Wash. Post, Jan. 17, 1975, § A, at 3, col. 4. 89. Id. 90. Id. At a hearing conducted by Senator Edward M. Kennedy, similar charges of ignoring advisory committee recommendations were leveled. Several FDA scientists and outside advisors charged that the FDA's top echelon always supported them when they recommended approval of new medicines but commonly harassed and intimidated them when they questioned the safety or effectiveness of new drugs. They reported that the disapproval of FDA officials frequently took the form of alteration of records, secret meetings with pharmaceutical manufacturers and transfer of the scientist - sometimes at the instigation of the companies. One advisor said he was convinced that all of the deliberations of his advisory commit-

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E.

Inadequate Notice

As stated above, the Act requires timely notice of a meeting. Statistics reveal that approximately 24 percent of all notices of meetings placed in the Federal Register during the three month period August - October, 1974, fell short of the 15-day advance notice presently required by OMB guidelines,9 ' and also far short of the 30-day period required by two court decisions.9 2 When the notice is given on the day of the meeting, or the day after, 3 it is exceptionally difficult to attend. F.

Minutes

Frequently, the "detailed minutes" required by the Act94 turn out to be not detailed at all, and may not even be available. The Consumer Advisory Council of the Office of Consumer Affairs has not, as of this writing, prepared the minutes for any meetings held during 1974. In one case, there was a delay in printing minutes because they had to be "sanitized.""5 Another technique is to keep two sets of "official" minutes - an expurgated set for the public and another for the committee's private use. The best remedy may be a court order that verbatim transcripts be kept. 9 G.

Imbalanced Representation

Despite the provisions of the Advisory Committee Act97 and repeated promises by OMB to make concerted efforts to attain a reasonably balanced representation, "fair balance" remains an untee about an Abbott Laboratories drug were being leaked by an FDA official to the company. Id., Aug. 16, 1974, § A, at 1, col. 6. 91. OMB Guidelines, supra note 43, § 8(b)(3). 92. Aviation Consumer Action Project v. Washburn, Civ. No. 73-1838 (D.D.C., Sept. 10, 1974); Gates v. Schlesinger, 366 F. Supp. 797 (D.D.C. 1973). Approximately 220 of 932 notices of meetings during the three months from August to October, 1974, gave less than 15 days notice. See 39 Fed. Reg. 27,787-37,049 (1974). 93. See, e.g., 39 Fed. Reg. 29,620 (1974), announcing a meeting of the Federal Energy Administration's Electric Utilities Advisory Committee that was held on August 15, 1974. 94. 5 U.S.C. App. I, § 10(c) (Supp. I1, 1973). 95. Telephone conversation with secretary, National Institutes of Health Jan. 15, 1975. 96. Aviation Consumer Action Project v. Washburn, Civ. No. 73-1838 (D.D.C., Sept. 10, 1974). 97. 5 U.S.C. App. I, § 5(b)(2) (Supp. III, 1973).

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attained statutory goal. Chester Warner, former director of OMB Committee Management Secretariat and certainly a person in a position to know, reports that the majority of federal advisory committees do not have balanced representation. 8 This is not surprising in light of the prevalent feeling in federal agencies and departments that the consumer point of view need not be represented. The directive in the Act for "balance" is interpreted by those holding this view to mean geographical, racial or sex distribution without any regard for the special interest or point of view represented. For example, almost all of the 155 members of the prestigious and influential National Petroleum Council, which has a strong hand in setting the nation's oil policy, are closely tied to the oil industry. The list of its members includes top executives from the oil industry, with officers of the Gulf, Conoco, Shell, Sun and Ashland oil companies, but until January, 1975 not one "consumer representative."99 In defending the composition of the NPC against the claim 98. C. Warner, The Committee Management Secretariat, Office of Management and Budget 15 (1975) [hereinafter cited as Warner, Committee Management]. This special report, submitted to Senator Metcalf's subcommittee on Budgeting, Management, and Expenditures, was written after Mr. Warner resigned as Director of the OMB Committee Management Secretariat. In it he discusses the findings of a survey he made when he took over the directorship, the violations of the Act he discovered, his accomplishments and failures as Director, and recommendations to his successor. 99. Controversy over the National Petroleum Council began several years ago when Congress started to investigate the advisory committee system. Since that time, Senator Lee Metcalf, the chief architect of the Advisory Committee Act, has consistently raised questions about the status, influence and membership of the NPC. Despite several letters from him to the Secretary of the Interior and the Director of OMB voicing these concerns, on September 10, 1974, Secretary of the Interior, Rogers C.B. Morton, appointed 21 new members to the NPC, all of whom had close ties to the oil industry. In defending this imbalance, Council officials claimed that the Council was only a technical body. However, it has produced impressive reports that were not limited to technical advice. In any event, there is no proviso to FACA exempting from its coverage advisory committees which are "technical bodies." The recent resignation of Chester Warner, Director of the Committee Management Secretariat at OMB, once again brought the NPC into the news. See Wash. Star-News, Jan. 30, 1975, § A, at 12, col. 1. In resigning, Warner charged that OMB Director Roy Ash and his deputy were acting illegally in approving continuation of the NPC and that the Council was probably operating illegally. Warner related the following chronology: At 4:00 p.m. on December 31, 1974, the date the NPC Charter was to expire, an assistant secretary of the Interior Department called Warner and informed him he had the required plan for continuing the NPC en route to OMB and was working on a list of names for broadening membership on

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that the Interior Department had failed to comply with the fair balance provisions of the Act, an Assistant Interior Secretary said, "The law does not tell us whether it means balance within the industry or balance in the society." ' In other words, fair balance required equal representation of Exxon, Mobil, Gulf, Shell and other oil companies. The harm resulting from the imbalance of the NPC is augmented by the fact that the few open meetings which the NPC does have are usually ceremonial. The substantive work is completed in subthe Council. The letter arrived at 5:28 p.m., but Warner claimed the plan did not contain provisons for balanced membership and that there was no time to consider the affiliations and backgrounds of the proposed new members. He therefore refused to approve continuation of the Council. The assistant secretary then contacted the deputy director of OMB who approved its continuation by telephone. In defending OMB's actions, the deputy director said that OMB had followed the law and was not going to be "bureaucratic on enforcement just because it was on the eve of a national holiday." Id. In fact, however, section 7(a) of OMB Guidelines, Circular No. A-63 as revised by Transmittal Memorandum No. 1, July 19, 1974, requires that agencies submit their plans to renew advisory committees at least 30 days before the committee's charter expires. Thus, the plans submitted at 5:28 on December 31 were one month late. Warner implied that the law was bent to save the NPC because of the prestige of its members: "The National Petroleum Council was granted special consideration and is the only advisory committee granted concurrence in this manner." Id. Had the Council been allowed to expire and had Interior attempted to recreate it, the Council's charter would have been open to complaints by consumer and environmental groups and other oil industry critics. Its continuation avoided these problems. As a result of the controversy over NPC membership, on January 6, 1975, Secretary of Interior Rogers C.B. Morton announced the appointment of 22 new members to the NPC. Among the individuals representing interests other than those of the petroleum industry are: Andrew J. Biemiller, Director, Department of Legislation AFL-CIO; Charles F. Bulotti, Jr., President of the American Automobile Association; Ed Carlson, Chairman of the Board of United Airlines; Ruth C. Clusen, President, League of Women Voters; Frank E. Fitzsimmons, President of the International Brotherhood of Teamsters; Robert Gilkeson, Chairman of Edison Electric Institute; John G. Winger, Vice President of the Chase Manhattan Bank of New York; and Charles Wyckoff, President of National Rural Electric Cooperative Association. It should be noted, however, that despite the unsatisfactory nature of the NPC's consumer representation, the 22 recent appointees include three environmentalists and three persons with academic backgrounds. The legality of the NPC's continuation and structure is now in the courts since Senator Metcalf filed a suit in March, 1975 to stop the Interior Department and the Federal Energy Administration from obtaining advice from the NPC. Metcalf v. National Petroleum Council, Civ. No. 75-0397 (D.D.C., filed March 21, 1975). 100. Jack W. Carlson, Assistant Secretary of the Interior for Energy and Minerals, quoted in Wash. Post, Sept. 10, 1974, § A, at 4, col. 4.

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committees and task forces that frequently convene without public notice and have been known to meet in oil company offices in Houston and San Francisco. 101 The Council's 26-member staff and $1.2 million budget are supported entirely by "voluntary" contributions from oil company members. The NPC, which has been praised by Secretary of the Interior Rogers C.B. Morton as "a pillar of strength,'"'° has been charged by several critics with indirectly making public policy because of its control over much of the information on which that policy was based." 3 The need for balanced representation could hardly be more acute. H.

Record-Keeping and Reporting Requirements

Neglect also characterizes FACA's reporting requirements. The Act makes the Library of Congress a depository for advisory committee charters, reports and background papers.' °4 The purpose of this requirement is to centralize advisory committee documents so as to permit the public and the Congress to be fully informed about the current affairs of advisory committees. A visit to the Library by the author to obtain certain advisory committee documents revealed two cardboard cartons on the floor containing all advisory committee documents that had been received. There was no index, alphabetical arrangement, or logical order to this collection. Following several protests and a letter from Senator Metcalf to the Librarian,0 5 the situation changed to the extent that the material contained in the cardboard boxes has been moved to the Rare Books section of the Library and is now arranged by agency. This "improvement" helps very little since there are usually scores of committees for each agency. Thus, the public's right to know what is going on, a right explicitly conferred by statute, has been effectively destroyed by improper administration. The Library of Congress is not the only entity charged under FACA with a reporting responsibility that has failed to execute it. Neglect also finds its way into the highest level of govern101. Minneapolis Tribune, Feb. 16, 1975, § B, at 9, col. 6. 102. Secretary of Interior Rogers C.B. Morton, quoted by David Kuhn, id. at col. 7. 103. For discussion of the National Petroleum Council's influence in setting the nation's oil policy see Isaacs, The Oil Lobby: Image of Vast Power, Wash. Post, Jan. 8, 1975, § A, at 1, col. 4. 104. 5 U.S.C. App. I, § 9(c) (Supp. III, 1973). 105. Letter from Sen. Lee Metcalf to L. Quincy Mumford, Librarian of Congress, Sept. 26, 1974.

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ment - the Executive Office of the President. For example, one of the President's functions under the Act is to make a report to the Congress within one year after a presidential advisory committee has submitted a public report to him."' Not one such report has been submitted either by the President or by agency heads to whom some of his reporting responsibility has been delegated.'0 Even the President's Annual Report to the Congress on the activities, status and changes in the composition of advisory committees in existence during the year 08 does not comply with the Act's requirements. 08 Furthermore, agencies and departments are neglecting their own reporting responsibilities, which include reporting on each advisory committee in order to furnish the raw data for OMB's comprehensive review and the President's Annual Report."' Mr. Chester Warner described the situation that existed in the Committee Manage106. 5 U.S.C. App. I, § 6(b) (Supp. 111, 1973). 107. Warner, Committee Management, supra note 98, at 10-11. 108. 5 U.S.C. App. I, § 6(c) (Supp. 111, 1973). 109. The President has delegated responsibility for preparation of the President's Annual Report to the Administrator of the General Services Administration. Exec. Order No. 11,769, 39 Fed. Reg. 7125 (1974). The Act requires the Annual Report to contain detailed information about each advisory committee, such as the date of and authority for its creation, its termination date, its functions, a reference to the reports it has submitted, the dates of its meetings, the names and occupations of its members and its annual operating cost. The report also is required to include a list of those advisory committees abolished by the President and, in the case of committees established by statute, a list of those committees which he recommends be abolished and his reasons therefor. This report is due not later than March 31 of each calendar year. 5 U.S.C. App. I, § 6(c) (Supp. 111, 1973). The Second Annual Report of the President, submitted in June, 1974, totally fails to provide the extensive and detailed information required. The report is a mere listing of committee names, the departments they advise, names of committee management officers and some summary data arranged by department and agency. It does not deal with individual committee data and, although useful as a central index, it does not comply with the law. Significantly, the Second Annual Report, prepared by GSA, consists of less than 100 pages, in contrast to the five volume, several thousand page printing of the data contained in the First Annual Report and put together by Senator Metcalf's Subcommittee on Budgeting, Management and Expenditures. The Third Annual Report, just issued, is comparable to the Second. 110. The Act requires the Director of OMB to conduct an annual comprehensive review of the activities and responsibilities of each advisory committee and dictates that agency heads cooperate with the Director in making the reviews required by the section. 5 U.S.C. App. I, § 7(b) (Supp. I1, 1973). Section 10 of the OMB Guidelines deals with comprehensive agency reviews of each advisory committee and requires that the results of the review be included in the annual report to GSA.

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ment Secretariat, OMB, on March 28, 1974, when he was appointed its director: 1) Committee Management Secretariat had received only 31 annual reports of the 54 due from the agencies no later than February 1, 1974. These reports were necessary for the Committee Management Secretariat to prepare the President's Second Annual Report to the Congress, due no later than March 31, 1974. 2) Some agencies, when called about the missing reports, had no committee management officers, did not know about the annual report and had never heard of the Federal Advisory Committee Act. 3) The Committee Management Officer of the Small Business Administration said he could not submit a report for several months. The President's Second Annual Report to the Congress was submitted with only the SBA's estimates of what its advisory committees did in 1973.111 In addition to the general reporting requirement placed on each agency, FACA directs that where an advisory committee has made a determination to close a meeting, the committee shall issue a report at least annually setting forth a summary of its activities and related matters so as to be informative to the public.' An experience with the Art Advisory Panel to the Commissioner of Internal Revenue is illustrative of the state of affairs with respect to these annual reports and is yet another example of how the public's right to know under FACA remains a fiction. The Art Advisory Panel consists primarily of representatives of the art community - art dealers, museum directors, academics - who determine, in closed session, the fair market value of art objects. The author requested an annual report from this group for four months, but after the Panel sent several letters informing her that the request must go through proper channels, it turned out that the report did not exist. The report for meetings held in 1973 appeared several months later - almost a year overdue and with little information shedding light on the closed meetings. 111. Warner, Committee Management, supra note 98, at 2-3. With respect to compliance with the Act, Warner found large scale violations and much disorder: over 1,250 advisory committees in 56 agencies with over 23,000 members; a substantial overlap and duplication of responsibilities; imbalance on a majority of the committees; unchartered groups holding meetings; and violations of other provisions of the Act. Id. at 15. 112. 5 U.S.C. App. I, § 10(d) (Supp. 1H, 1973).

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L Abdication of Responsibilities Upon being placed in charge of a department's advisory committees, one committee management officer was told by an Assistant Secretary of his agency that his advisory committee work should not "interfere with his regular work. 11

3

This attitude exemplifies a

prevalent default on the policy and decisionmaking level of the government with respect to the Advisory Committee Act. This abdication is further reinforced by an across-the-board nonperformance of responsibilities delegated under the Act. Between March 28, 1974, and June 10, 1974, Mr. Chester Warner in his capacity as Director of the Committee Management Secretariat, OMB, personally ran a survey of advisory committee management in the Federal Government. The findings in the survey were basically as follows: 1) Congress had no advisory committee management system. There was little or no knowledge of advisory committee management among the staffs of standing committees of both the Senate and the House having legislative jurisdiction over the various advisory committees." 4 2) The President and the White House staff had no committee management system. There was little or no knowledge of advisory committee management on the White House staff."1 Among other specific violations, the President has created several advisory committees which were incorrectly determined to be outside of the advisory committee process. In appointing committee members, the President has given little or no consideration to fairly balancing the memberships in terms of the points of view represented and the functions to be performed. 6 The survey showed that the biggest problem in administering the Act was the total lack of interest and knowledge on the Cabinet and subcabinet level. The decisionmak113. As related by Chester Warner at the Freedom of Information Conference, February 6, 1975. 114. Warner, Committee Management, supra note 98, at 4. The exception to the congressional default is Senator Metcalf's Subcommittee on Budgeting, Management and Expenditures. The Subcommittee, under the direction of Vic Reinemer, has performed its oversight functions vigorously and thoroughly. 115. The President has delegated the functions vested in him by FACA to the Director of OMB. Exec. Order No. 11,769, 39 Fed. Reg. 7125 (1974). However, the President creates advisory committees, appoints members to these committees, and appoints members to certain advisory committees created by the Congress. 116. Warner, Committee Management, supra note 98, at 4-5, 9.

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ers did not know and did not care about complying with the Act; their general opinion was that all advisory committees should be abolished." 7 3) There was little or no knowledge of advisory committee management in the Office of Management and Budget. The general attitude of the policymakers at OMB8 was one of ignorance of and indifference to advisory committees."

4) Although most of the expertise on committee management operations that did exist was found in the advisory committee management officers of individual agencies and departments, many officers and staffs knew very little about such management."' Many agencies had not written management regulations, had no system for management, had not defined and chartered subgroups as advisory committees and did not publish proper justifications for closed meetings. 2 ' This brief examination of the problems and issues that have arisen during the two-year life of the Act points toward massive noncompliance with the law. Court decisions support the conclusion that the Government's view of the Act is too cramped.' Of six 117. Id. at 6. 118. Id. at 5-7. 119. Id. at 5. 120. Id. at 11. 121. Aviation Consumer Action Project v. Washburn, Civ. No. 73-1838 (D.D.C. Sept. 10, 1974), appeal docketed, Civ. No. 75-1086 (D.C. Cir. Feb. 3, 1975); Don't Tear It Down, Inc. v. Sampson, Civ. No. 74-381 (D.D.C. April 16, 1974); Food Chemical News, Inc. v. Davis, 378 F. Supp. 1048 (D.D.C. 1972); Nader v. Dunlop, 370 F. Supp. 177 (D.D.C. 1973); Gates v. Schlesinger, 366 F. Supp. 797 (D.D.C. 1973). The Gates case was handled by Professor Richard Wolf, who is deputy director of the Institute for Public Interest Representation; the other four cases were handled by attorneys for the Freedom of Information Clearinghouse. There are two unwritten opinions supporting nonapplication of the Act. A California court, in an unexplained oral decision, denied plaintiff access to the transcripts of the FDA's over-the-counter antacid drug panel. The court's decision was apparently based on the misconception that advisory committees are policymaking groups and relied on the incorrect impression that it was minutes, rather than transcripts, which were in dispute. Thus, apparently without realizing that the FDA had already made the minutes public, the court concluded that: "The minutes of the meetings of the panel are clearly not matters that are subject to outside intrusion." Smart v. FDA, Civ. No. C-73-0118 RHS, tr. at 7 (N.D. Cal. April 24, 1974). The Federal Advisory Committee Act was held inapplicable to an ad hoc meeting at the White House. The court decided that the Administration was not going to receive either advice or recommendations at a proposed meeting with

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decisions holding the Government in violation, an appeal has been docketed in only one. 22 It is hoped that the failure to appeal represents an acknowledgement of the correctness of those decisions rather than an attempt to minimize their importance as precedents. V.

PROPOSED AMENDMENTS

Two things should be apparent from this preliminary review of the Act. First, the Act itself embodies concepts which, if followed, will drastically curtail unnecessary secrecy in executive decisionmaking. Second, the two-year history of the Act has shown that despite its unequivocal objectives, more teeth are needed to realize these objectives. As is the case with many laws, experience points out where change in the law must be made. The following eight amendments are suggested: 1) There should be created or designated an adequately staffed independent agency, rather than OMB, to serve as overseer for the Act with power to put teeth into its requirements. OMB must take much of the blame for the Act's failures since it has completely abdicated its responsibilities under the Act and given the agencies little or no guidance. 2) Sanctions, such as a monetary penalty or mandatory suspension for willful noncompliance, should be added to parallel the addition of a sanctioning provision to the FOIA. This would also help deter the rubber stamp application of the FOTA exemptions. 3) The FOIA exemptions must be modified and tailored to advisory committees. Some, especially exemption five, are incompatible with the policy of disclosing information within an advisory group. Specific exemptions applicable to advisory committees should be written in; the FOIA exemptions were created for documents, not committee deliberations. 4) A satisfactory way must be devised, short of going to court, to challenge the determination of an agency bureaucrat to close a meeting. An informal and quick appellate review procedure should be set up within the agency which would give an aggrieved party a automobile manufacturers and consequently held that it was not an "advisory" committee under the Act. Center for Auto Safety v. Morton, Civ. No. 74-1566 (D.D.C. Oct. 28, 1974), motion for summary review denied, Div. No. 74-1987 (D.C. Cir. Oct. 29, 1974). 122. Aviation Consumer Action Project v. Washburn, Civ. No. 73-1838 (D.D.C. Sept. 10, 1974), appeal docketed, Civ. No. 75-1086 (D.C. Cir. Feb. 3, 1975).

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speedy and fair review of an adverse decision. Ultimately the Attorney General should be responsible for all decisions closing meetings in whole or in part, and where he approves a decision to close, he should be required to state his concurrence. Thus, an official responsible to the public, rather than an obscure bureaucrat, must be on record in favor of closing the door. 5) A verbatim transcript requirement should be imposed where deliberations take place in closed meetings so that courts can review as fully as possible the need to have a closed meeting and to minimize the danger of irreparable, public injury through the erroneous closing of a meeting. 6) A definite and enforceable balancing policy must be set, clearly defining the term "balanced membership," thereby avoiding a committee as stacked in favor of one interest as the NPC has been. 7) The public notice provisions must be strengthened. The definition of "timely notice" should require a minimum of 30 days advance notice except in specific emergency situations. 8) In addition to the FederalRegister announcement, committees should be required to provide other means of notice of meetings such as using a mailing list for interested persons and announcing in a newspaper at the place where a meeting is to be held. CONCLUSION

It is fair to say that to date there has been minimal public awareness of advisory committee activities that take place behind the doors of very powerful executive departments and regulatory agencies. It should be obvious that for the Act to truly accomplish its objectives, the public's rights should be enforceable, and, equally important, the public must exercise its rights under the Act. Newspapers, magazines, radio and television networks, all of which have so far shown little initiative in utilizing the Act, must participate in the advisory committee process. The decisionmaking process is secret either if the doors are closed, or, if open, no one comes in. Agencies and advisory committees must be made aware of public interest in their proceedings. Consequently, the public should be encouraged to attend as many advisory committee meetings as possible, to correspond with them and ask for information, records, minutes, reports and any other pertinent data. In addition, public interest groups clearly have an obligation to their constituents to remain informed and to play an active role in the process. Congress, in passing the Federal Advisory Committee Act, took

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the important first step in overturning the preference for secrecy which had come to characterize governmental decisionmaking. If the next step is now taken, then that neglected little brother may indeed turn out to be a prodigy with the extraordinary ability to make secrecy the exception, not the rule, in large modern government.