May 21, 1979
79-32 MEMORANDUM OPINION FOR THE SENIOR ASSOCIATE COUNSEL TO THE PRESIDENT
Three Mile Island Commission—Closed Meetings— Federal Advisory Committee Act (5 U.S.C. App.)—Government in the Sunshine Act (5 U.S.C. § 552b)
This m em orandum is to confirm our advice that legislation that would grant the President’s Commission on the Accident at Three Mile Island the power to issue subpoenas is sufficient also to allow the closing o f its meetings under certain circumstances. We have reviewed the statement by Senator Kennedy made on the Senate floor last week and, assuming that no contrary indications arise when the House considers the Three Mile Island subpoena legislation, we conclude that it is sufficient to make reasonably clear that exemption (10) o f the Government in the Sunshine A ct’s exemptions, 5 U .S.C . § 552b(c)(10), will be available when this Commission is to discuss its issuance o f subpoenas.* O ur reasons for so concluding are as follows.
I. Applicability o f the Sunshine Act Exemptions in General
The Commission is an advisory committee subject to the provisions of the Federal Advisory Committee Act (FACA), 5 U .S.C . App. I (1979 Supp.), P ub. L. N o. 92-463. The principal purpose of that Act is to pro vide a unified set o f procedures for advisory committees to agencies
. *Editor’s Note: This m em orandum was written before the House o f Representatives con sidered the resolution that ultimately became the Three Mile Island Commission subpoena legislation, P u b . L. N o. 96-12, 96th C ong., 1st sess. (1979). T he House debate, which oc curred on the date this m em orandum was transm itted (May 21, 1979), did not indicate a con gressional intent contrary to that indicated by Senator Kennedy’s remarks during the Senate debate. See 125 C o n g re s s io n a l R e c o rd H . 3480-81 (daily ed., May 21, 1979). The resolu tion became law on May 23, 1979.
208 and to the President. As the A ct’s legislative history makes clear, the open ness provisions o f the FACA are to be liberally construed. See 5 U .S.C . App. I § 10(a)(1).' However, in the event that the President or his designee,2 or the head o f the agency to which an advisory committee reports, determines that one o f the Sunshine Act exemptions applies, then the portion o f a meeting to which it pertains may be closed so long as the required procedures are followed. See § 10(d) o f the FACA; see also O f fice o f Management and Budget Circular No. A-63.
II. The Difficulty with Utilizing Exemption (10) The problem with utilizing exemption (10) o f the Sunshine Act is that it refers to “ the agency’s” issuance o f a subpoena as the predicate for its use. This suggests the following difficulty: for exemption (10) to be em ployed, it would have to be determined that “ the agency’s” action is to be discussed at a committee meeting. As a rule, an advisory committee is not itself an “ agency.” 3 Therefore, in the normal situation an advisory com mittee would have to show that some other entity, denom inated an “ agen cy” for purposes o f the exemption, is to issue a subpoena before exemp tion (10) may be applicable. In the present case, that reasoning would mean that the commission’s own issuance o f a subpoena, all other things being equal, would not suffice as the basis for closing a meeting o f the Commission. It might be said that the purpose o f Congress in providing an exemption for the closing o f a meeting to discuss the issuance o f a subpoena would be undermined by concluding that, when the subpoena is not issued by an en tity which is clearly an “ agency” in law, such entity cannot seek to rely on exemption (10). We recommended the inclusion o f a specific provision in the subpoena legislation to clarify that ambiguity.
1 See S. Rept. 92-1098, 92d C ong., 2d sess. at 14: “ * * * the intention o f this legislation [the FACA] is that the standard o f openness and public inspection o f advisory com m ittee records is to be liberally construed.” 1 Section 10(d) o f the FACA provides that “ the President, or the head o f the agency to which the advisory comm ittee reports,” is to determine that a portion o f a meeting may be closed in accordance with one o f the Sunshine Act exemptions. In view o f norm al subdelega tion doctrine, the President may delegate his express authority pursuant to the FA CA to “ the head o f any departm ent or agency in the executive branch, or any official thereof who is re quired to be appointed by and with the advice and consent o f the Senate * * 3 U .S.C . § 301. In § 1-306 o f Exec. O rder No. 12130, the President delegated his functions under the FACA, except that o f reporting annually to Congress and to the A dm inistrator o f General Services. 1 The FACA provides that “ agency” has the same meaning as it does in the Adm inistrative Procedure Act. Section 551(1) o f Title 5, United States Code, defines an “ agency” as “ each authority o f the government o f the United States whether or not it is within or subject to review by another agency.” This definition has been judicially construed to require that an executive branch entity, to be deemed an “ agency,” have “ substantial independent authority in the exercise o f specific functions,” Soucie v. David, 448 F. (2d) 1067, 1073 (D .C . Cir. 1971), or the “ authority in law to make decisions,” Washington Research Project, Inc. v. HEW , 504 F. (2d) 238, 248 (D .C . Cir. 1974). Such tests cannot normally be met by advisory i committees, whose chief function is to make recom m endations and not to exercise independ ent authority. See, Wolfe v. Weinberger, 403 F. Supp. 238, 241 (D .D .C . 1975); Gates v. Schlesinger, 366 F. Supp. 797, 799 (D .D .C . 1973).
209 III. Clarification o f the Commission’s Status The following was stated on the floor o f the Senate by Senator Ken nedy, the sponsor o f the subpoena legislation. Mr. President, originally, the resolution [calling for subpoena power for the Commission] proposed by the administration con tained a provision specifying that the commission could close its meetings under certain circumstances. We have deleted that pro vision because we believe that the Commission already has the power to close its meetings under those circumstances pursuant to the Federal Advisory Committee Act if the President or agency head approves. We believe that if meetings are to be closed in connection with this vital m atter o f public concern it should only be done with the approval o f the President or rele vant agency head—and that the Commission should not have the power to close its meetings on its own. [125 C o n g r e s s i o n a l R e c o r d § 6185 (daily ed., May 17, 1979.)] The reference to the legislation proposed by the Administration makes plain that the exemption which the Adm inistration sought to make applicable to the commission—in particular, exemption (10)—should be considered already available. Specifically, the Adm inistration’s proposal provided that the term “ agency” for purposes o f the Sunshine Act exemptions “ shall be construed to apply to this Commission.” Accordingly, the evident meaning o f Senator Kennedy’s comment is that what the Administration had sought to make clear already exists with respect to the Commission—that is, that this Commission can in appropriate circumstances be considered an “ agency” for the purpose o f exemption (10).4 An argument that Senator Kennedy’s statement is not sufficient to establish that the Commission may utilize exemption (10) in particular— assuming no contrary indication by the House when it considers the legis lation—would appear specious.
Free access — add to your briefcase to read the full text and ask questions with AI
May 21, 1979
79-32 MEMORANDUM OPINION FOR THE SENIOR ASSOCIATE COUNSEL TO THE PRESIDENT
Three Mile Island Commission—Closed Meetings— Federal Advisory Committee Act (5 U.S.C. App.)—Government in the Sunshine Act (5 U.S.C. § 552b)
This m em orandum is to confirm our advice that legislation that would grant the President’s Commission on the Accident at Three Mile Island the power to issue subpoenas is sufficient also to allow the closing o f its meetings under certain circumstances. We have reviewed the statement by Senator Kennedy made on the Senate floor last week and, assuming that no contrary indications arise when the House considers the Three Mile Island subpoena legislation, we conclude that it is sufficient to make reasonably clear that exemption (10) o f the Government in the Sunshine A ct’s exemptions, 5 U .S.C . § 552b(c)(10), will be available when this Commission is to discuss its issuance o f subpoenas.* O ur reasons for so concluding are as follows.
I. Applicability o f the Sunshine Act Exemptions in General
The Commission is an advisory committee subject to the provisions of the Federal Advisory Committee Act (FACA), 5 U .S.C . App. I (1979 Supp.), P ub. L. N o. 92-463. The principal purpose of that Act is to pro vide a unified set o f procedures for advisory committees to agencies
. *Editor’s Note: This m em orandum was written before the House o f Representatives con sidered the resolution that ultimately became the Three Mile Island Commission subpoena legislation, P u b . L. N o. 96-12, 96th C ong., 1st sess. (1979). T he House debate, which oc curred on the date this m em orandum was transm itted (May 21, 1979), did not indicate a con gressional intent contrary to that indicated by Senator Kennedy’s remarks during the Senate debate. See 125 C o n g re s s io n a l R e c o rd H . 3480-81 (daily ed., May 21, 1979). The resolu tion became law on May 23, 1979.
208 and to the President. As the A ct’s legislative history makes clear, the open ness provisions o f the FACA are to be liberally construed. See 5 U .S.C . App. I § 10(a)(1).' However, in the event that the President or his designee,2 or the head o f the agency to which an advisory committee reports, determines that one o f the Sunshine Act exemptions applies, then the portion o f a meeting to which it pertains may be closed so long as the required procedures are followed. See § 10(d) o f the FACA; see also O f fice o f Management and Budget Circular No. A-63.
II. The Difficulty with Utilizing Exemption (10) The problem with utilizing exemption (10) o f the Sunshine Act is that it refers to “ the agency’s” issuance o f a subpoena as the predicate for its use. This suggests the following difficulty: for exemption (10) to be em ployed, it would have to be determined that “ the agency’s” action is to be discussed at a committee meeting. As a rule, an advisory committee is not itself an “ agency.” 3 Therefore, in the normal situation an advisory com mittee would have to show that some other entity, denom inated an “ agen cy” for purposes o f the exemption, is to issue a subpoena before exemp tion (10) may be applicable. In the present case, that reasoning would mean that the commission’s own issuance o f a subpoena, all other things being equal, would not suffice as the basis for closing a meeting o f the Commission. It might be said that the purpose o f Congress in providing an exemption for the closing o f a meeting to discuss the issuance o f a subpoena would be undermined by concluding that, when the subpoena is not issued by an en tity which is clearly an “ agency” in law, such entity cannot seek to rely on exemption (10). We recommended the inclusion o f a specific provision in the subpoena legislation to clarify that ambiguity.
1 See S. Rept. 92-1098, 92d C ong., 2d sess. at 14: “ * * * the intention o f this legislation [the FACA] is that the standard o f openness and public inspection o f advisory com m ittee records is to be liberally construed.” 1 Section 10(d) o f the FACA provides that “ the President, or the head o f the agency to which the advisory comm ittee reports,” is to determine that a portion o f a meeting may be closed in accordance with one o f the Sunshine Act exemptions. In view o f norm al subdelega tion doctrine, the President may delegate his express authority pursuant to the FA CA to “ the head o f any departm ent or agency in the executive branch, or any official thereof who is re quired to be appointed by and with the advice and consent o f the Senate * * 3 U .S.C . § 301. In § 1-306 o f Exec. O rder No. 12130, the President delegated his functions under the FACA, except that o f reporting annually to Congress and to the A dm inistrator o f General Services. 1 The FACA provides that “ agency” has the same meaning as it does in the Adm inistrative Procedure Act. Section 551(1) o f Title 5, United States Code, defines an “ agency” as “ each authority o f the government o f the United States whether or not it is within or subject to review by another agency.” This definition has been judicially construed to require that an executive branch entity, to be deemed an “ agency,” have “ substantial independent authority in the exercise o f specific functions,” Soucie v. David, 448 F. (2d) 1067, 1073 (D .C . Cir. 1971), or the “ authority in law to make decisions,” Washington Research Project, Inc. v. HEW , 504 F. (2d) 238, 248 (D .C . Cir. 1974). Such tests cannot normally be met by advisory i committees, whose chief function is to make recom m endations and not to exercise independ ent authority. See, Wolfe v. Weinberger, 403 F. Supp. 238, 241 (D .D .C . 1975); Gates v. Schlesinger, 366 F. Supp. 797, 799 (D .D .C . 1973).
209 III. Clarification o f the Commission’s Status The following was stated on the floor o f the Senate by Senator Ken nedy, the sponsor o f the subpoena legislation. Mr. President, originally, the resolution [calling for subpoena power for the Commission] proposed by the administration con tained a provision specifying that the commission could close its meetings under certain circumstances. We have deleted that pro vision because we believe that the Commission already has the power to close its meetings under those circumstances pursuant to the Federal Advisory Committee Act if the President or agency head approves. We believe that if meetings are to be closed in connection with this vital m atter o f public concern it should only be done with the approval o f the President or rele vant agency head—and that the Commission should not have the power to close its meetings on its own. [125 C o n g r e s s i o n a l R e c o r d § 6185 (daily ed., May 17, 1979.)] The reference to the legislation proposed by the Administration makes plain that the exemption which the Adm inistration sought to make applicable to the commission—in particular, exemption (10)—should be considered already available. Specifically, the Adm inistration’s proposal provided that the term “ agency” for purposes o f the Sunshine Act exemptions “ shall be construed to apply to this Commission.” Accordingly, the evident meaning o f Senator Kennedy’s comment is that what the Administration had sought to make clear already exists with respect to the Commission—that is, that this Commission can in appropriate circumstances be considered an “ agency” for the purpose o f exemption (10).4 An argument that Senator Kennedy’s statement is not sufficient to establish that the Commission may utilize exemption (10) in particular— assuming no contrary indication by the House when it considers the legis lation—would appear specious. It would be inappropriate to rely on the general proposition that, normally, advisory committees are not “ agen cies,” because this Commission is in a special situation, given the legisla tive history discussed above. Also, in light o f that clarification, to accept the contention that the Commission’s meetings cannot be closed on the basis o f exemption (10) is to frustrate the apparent aim o f Congress in granting the commission subpoena power: namely, to make certain that the commission can conduct a thorough investigation, which at times may require closure o f certain portions o f meetings to consider the use o f sub poena power. The legislative history o f the Sunshine Act is not to the contrary. The provision making Sunshine Act exemptions applicable to advisory
4 We should add that Senator Kennedy’s reference to the determ ination by the President, or agency head, o f the grounds for closing a Commission meeting simply restates the pro vision o f § 10(d) o f the FACA.
210 committees, which arose in a floor amendm ent, is based on the premise that the FACA, which deals with meetings, should have a set o f exemp tions that also refer to meetings, instead o f ones that refer to docum ents. See 122 C o n g r e s s io n a l R e c o r d H. 24208-09, 94th Cong., 2d sess. (1976). Also, as the House conference report makes plain, that provision was intended to disapprove the use o f exemption (5) o f the Freedom o f In formation Act, 5 U.S.C. § 552(b)(5), which deals with internal deliberative memoranda. As was said, “ [t]he chief concern in this regard has been ap plication o f exemption (5) a provision intended to protect the confiden tiality o f purely internal governmental deliberations, as a basis for closing discussions with and among outside advisers.” H. Conf. Rept. 1441, 94th Cong., 2d sess. 26 (1976). [Emphasis, in original.] But the desire to end reliance on such a relatively broad exemption designed to protect “ full and frank” discussions in general does not militate against the use, in present circumstances, o f a much more precise exemption designed to protect frankness in the deliberations o f an entity with subpoena power—particu larly when the Congress has indicated explicitly that that entity has the power to use such an exemption.
IV. Conclusion
We conclude that the Commission’s meetings dealing with its issuance of subpoenas may be closed on the basis o f exemption (10), assuming that there is determined to be a need for so closing such meetings. O ur conclu sion is confined to the availability o f exemption (10). In the context of other exemptions using the word “ agency,” such as exemption (2) (“ inter nal personnel rules and practices o f an agency” ) and exemption (9)(B) (“ frustrate implementation o f a proposed agency action” ), we consider that the term “ agency” should be interpreted to mean “ President or agency.” That is, to make the Sunshine Act exemptions consistent with the scheme o f the FACA, it is necessary to read “ agency” as including the President. But if, for example, a proposed Presidential or agency action is not likely to be frustrated within the meaning o f exemption (9)(B) by an open meeting, exemption (9)(B) would not in our view apply. For although Senator Kennedy’s language refers generally to “ certain circumstances” in which closure o f commission meetings would be justified, it seems most reasonable to limit those circumstances, insofar as they are arguably rele vant to the subpoena context.
L arry A . H am m ond Deputy Assistant A ttorney General Office o f Legal Counsel