Government in the sunshine act, S. 5 (Public Law 94-409)

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Title:
Government in the sunshine act, S. 5 (Public Law 94-409) source book, legislative history, texts, and other documents
Physical Description:
viii, 832 p. : ; 23 cm.
Language:
English
Creator:
Relyea, Harold
United States -- Congress. -- House. -- Committee on Government Operations
United States -- Congress. -- Senate. -- Committee on Government Operations
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U.S. Govt. Print. Off.
Place of Publication:
Washington
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Subjects / Keywords:
Government information -- United States   ( lcsh )
Freedom of information -- United States   ( lcsh )
Executive departments -- United States   ( lcsh )
Genre:
federal government publication   ( marcgt )
bibliography   ( marcgt )
non-fiction   ( marcgt )

Notes

Bibliography:
Includes bibliographical references.
Additional Physical Form:
Also available in electronic format.
Statement of Responsibility:
Committee on Government Operations, United States Senate and the Committee on Government Operations, U.S. House of Representatives.
General Note:
At head of title: 94th Congress, 2d session. Joint committee print.
General Note:
Prepared by Harold C. Relyea.
General Note:
Issued Dec. 1976.
General Note:
Reuse of record except for individual research requires license from Congressional Information Service, Inc.
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Reuse of record except for individual research requires license from LexisNexis Academic & Library Solutions.
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CIS Microfiche Accession Numbers: CIS 77 S402-15

Record Information

Source Institution:
University of Florida
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All applicable rights reserved by the source institution and holding location.
Resource Identifier:
aleph - 022441292
oclc - 03092617X
Classification:
lcc - KF49
System ID:
AA00025892:00001

Full Text





















-SOUCE OOK LEISLTIV HITORY, TEXTS,





COMMTTE GOVERNMENT OPERATIONS COMITTE O GVERNENT OPERATIONS















SENATE COMMITTEE ON GOVERNMENT OPERATIONS

ABR AHTAM RIBICOFF, Connecticut, Chairman
JOHN L. McCLBOLAN, Arkansas CHARLES H. PE9RCY, IInois
HENRY M. JACKSON, Washington JACOB K. JAVITS, New York
EDMUNDS8. MUSKIE, Maine WILLIAM V. ROTH, J1. Delaware LEE METCATF, Montana BILL BROCK, Tennessee
JAMES B. ALLEN, Alabama LOWELL P. WEICKER, In., Connectcat LAWTON CHILES, Florida SAM NUNN, Georgia JOHN GLENN, Ohio
.RICHARD A. WEGMAN, Chief Counsel and Staff Director PAUL Horr, Counsel PAUL L. LEVENTHAL, COUnsel. ELI E. NOBLEMAN, Counsel DAVID R. SCHAEFER, Counsel MATTHEW SCHNIDE)R, COME861 JOHN B3. CHILoMs, Chief Cousel to the Minority BalAN CoNsor, Special Counsel to the Minority MARILYN A. HAnals, Chief Clerk ELIZABETH A. PREAST, A88i8tant Chief Clek HAROLD C. ANDERSON, Staff Editor
(II)













HOUS COMMITEE ON GOVERNMENT OPERATIONS

JACKBROSTeaCarn
L. H FOUTAI, Noth Crolna FANKHORTON, New York
JOHNE. OSS Calforia!OHN Ni. ERLEBR1I, Illioi WILIAMS. OOREAD Pensyvana LRENC ROWN, JaOhio








WM.~~~~~J P. RANDALL MisoriGIBET G ,Mrln




BENJIN RENTAL, ew ork PAUL N. McCIOSKEY, JR., California




JIM WRGHT, exas SM STEGER, rn














PREFACE
This compilation of materials relating to the legislative history of Public Law 94-409, the Government in the Sunshine Act, summarizes the four-year legislative activity behind the statute providing that meetings of certain Executive Branch agencies be open to public scrutiny.
This sourcebook was prepared for the Senate Committee on Government Operations and the House, Committee, on Government Operations by Dr. Harold C. Relyea, Congressional Research Service, Library of Congress, at the direction of the staff of the Committees.
(V)











CONTENTS

Page
v
Legislative History of the Government in the Sunshine Act-S. 5 (Public
Law
Text of the Government in the Sunshine Act, Public Law 94-409, 90 Stat.
1241, September 13, 8
SENATE ACTION
Introduction of S. 3881, 92d Congress (Congressional Record, v. 118,
August 4p 1972: 19
I-ext of S. 21
Introduction of S. 260, 93d Congress (Congressional Record, v. 119, January 9, 1973: 63
Text of S. 65
Introduction of S. 5, 94th Congress (Congressional Record, v. 121, January 15, 1975: S59-S64) ------------------------------------------ 96
Text of S. 98
Debate on adoption of S. 5 (Congressional Record, v. 121, November 5,
1975: S19372 134
Text of S. 5 as reported to Senate by Government Operations Com
mittee July 31, 1975 (with accompanying Senate Report 94-354) 135
Text of S. 5 as reported to Senate by Committee on Rules and Administration, September 18, 1975 (with accompanying Senate Report
257
Debate on adoption of S. 5 (Congressional Record, v. 121, November 6,
19759 819432-8,19447) -------------------------------------------- 320
Text of S. 51an act, as 357
HousE ACTION
Introduction of H.R. 4, 93d Congress (Congressional Record, v. 122,
January 6, 1973: H43 ---------------------------------------- 377
Text of H.R. 379
Introduction of H.R. 10000, 93d Congress (Congressional Record, v. 122,
August 3, 1973: H7482-7483) ------------------------------------- 381
Text of H.R. 385
Introduction of H.R. 5075, 94th Congress (Congressional Record, v. 122,
March 18, 1975: H1939-1942) ------------------------------------ 397
Text of H.R. 5075, as introduced -------------------------------- 398
Text of H.R. 9868, as introduced September 26, 1975 -------------- 403
Text of H.R. 10315, as introduced October 22, 1975 --------------- 420
Text of H.R. 11007, as introduced December 4, 1975- 439
Text of H.R. 11656, as introduced February 3, 1976 --------------- 457
Text of H.R. 11656Y as reported by Government Operations Committee, March 8, 1976 --------------------------------------- 475
Text of H.R. 11656, as reported by Government Operations Committee, March 8, 1976, and as reported by the Judiciary Committee,
April 8, 493
H. Rept. 94-880, Part I, text of ------------------------------ 512
H. Rept. 94-880, Part 11, text Of ----------------------------- 551
Debate on adoption of H.R. 11656/8. 5 (Congressional Record, v. 122,
July 28, 1976: H7863-H7902) ------------------------------------ 595
Text of H. Res. 595
Amendmentin the nature of a substitute by Mr. Flowers to H.R.
11656, text of ---------------------------------------------- 650
Amendment by House to S. 5 as adopted and messaged to Senate,
text of ---------------------------- 705
---------------------(via)





VM

CONFERENCEACTION
Senate appoints conferees (Congressional Record, v. 122, July 29, 19769
S12839) -------------------------------------------------------- 727
House appoints conferees (Congressional Record, v. 122, August 3, 19769
H8228) --------------------------------------------------------- 727
Conference Committee Print-comparison of House and Senate versions- 729 S. 5-Differences between House and Senate versions ------------------ 773
Conference report, text of ------------------------------------------ 783
House adopts conference report (Congressional Record, v. 122, August 31,
1976p 813
Senate adopts conference report (Congressional Record, v. 122, August 31,
19762 823
ExiEcUTWF, AcTioN
The President's remarks and statement upon signing S. 5 into law, September 13, 1976 (Presidential Documents: Gerald Ford, 1976, vol. 12,
number 38, pp. 1333-1334) -------------------------------------- 831











THE LEGISLATIVE HISTORY OF THE GOVERNMENT IN
THE SUNSHINE ACT-8. 5 (PUBLIC LAW 94-409)
The first sunshine proposal (S. 3881) was introduced by Senator Lawton Chiles (D.-Fla.) on August 4,1972, and referred to the Senate Committee on Government Operations.' A companion bill (H.R. 16450) was offered in the House of Representatives by Representative Dante Fascell (D.-Fla.) on August 17. Patterned after the philosophy behind the Freedom of Information Act (5 U.S.C. 552), the bills provided that "all meetings (including meetings to conduct hearings) of any government agency at which any offica"-'I action is considered or discussed shall be open to the public" and then set forth four categories of exception: national security matters, internal management questiGns, situations with a potential for adverse effect upon an individual's character or reputation, or subjects required to be kept confidential under specific statutory authority. The open meetings provisions also extended to congressional committee proceedings. Transcripts of open meeting deliberations were required and judicial remedy was estab lished in the event a dispute arose over the propriety and/or legality of closing a meeting.
Neither House took action on the measures in the 92d Congress. With the opening of the 93d Congress, the measure was again introduced in the House (H.R. 4) by Representative Faseell on January 3, 1973. A modified -and expanded version of the original proposal was offered (S. 260) by Senator Chiles and 17 bi-partisan co-sponsors, on Janu aq. 9.2
I
A version of the enlarged bill was subsequently introduced
R. 10000) in the House by Representative Faseell on August 3, and it eventually gained almost 50 co-sponsors from both political parties.
Expansion of the original measure included theaddition of a policy definition of "national security" as utilized in the bill; more detailed procedure regarding opening and closing meetings of both congres6ional.committces and Executive Branch multimember administrative agencies; inclusion of certain types of law enforcement information, trade secrets, and financial or commercial information as subjects exempt from mandatory disclosure in open meetings; and a now pro vision prohibiting x parte, communications between agency decisionmakers and all persons outside the agency where the purpose of the contact is to discuss the merits of any matter being formally adjudicated by the ag ncy, any rulemaking proceeding or any proceeding to prepare, an environmental impact statement.
Referred to the Senate Committee on Government Operations, the Sunshine bill was assigned to the Subcommittee on Reorganization, Research, and International Organizations, chaired by Senator Abraham Ribicoff (D.-Conn.), for consideration. In July 1974, the subcommittee sent, a questionnaire to a variety of experts-attorneys, public administrators, political scientists, public interest policy organizaSee Congressional Record. v. 118, August 4. 1972 8127,94-S12811.
See Md., v. 119, January 9, 1973: S373-8377.





2

tions, State officials, editors and joumalists--soliciting their views on the bill. These responses were compiled in December and published for use in considering the Sunshine proposal.-3
During the early 6tages of the 2d session of the 93d Congress, the Reorganization Subcommittee, with Senator Chiles as acting Chairman, received testimony on the bill from a number of witnesses. Public officials testifying at that time included Senator Charles Percy (R.- U.) Senator William Roth (R.-Del.), Senator Dick Clark (D.-lowa), Representative Bill Gunter (D.-Fla.), Representative Dante Fascell (D.-Fla.), and Governor Reubin Askew of Florida. Others appearing during the spring hearings included Charles S. Rowe, Bill Mullen, and Theodore S. Serrill, representing the National Newspaper Association; John Gardner and David Cohen, appear in on behalf of Common Cause; pollster Lou Harris; Ron Plesser, a a
atto th Ralph Nader's Center for the Study of Responsive Law;
and= Malchon, former State president of the League of Women Voters of Florida.
On October 15, the subcommittee heard from agency officials representing the particular views of such agencies as the Interstate Commerce Commission, Civil Aeronautics Boaird Securities and Exchange Commission, and Federal Communications Commission. Other witnesses included representatives from the Administrative Conference of the United States, spokesmen from the Radio-TV News Directors Association, Douglas Q. Wickham, Professor of law at the University of Tennessee Law School, and John B. Adams, Dean of the University of North Carolina Journalism School.4
In the 94th Congress the legislation was introduced by Senator Chiles with two dozen bi-partisan co-sponsors on January 15, 1975. The bill (S. 5) was first referred to the Subcommittee on Federal Spending Practices, Efficiency and Open Government of the Committee on Government Operations, and subsequently reported by that subcommittee on May 12. The bill was reported (S. Rept. 94-354) by the full committee with amendments by a unanimous vote on July 9.
Certain procedural requirements contained in the original bill regarding the closing of meetings were modified. In addition, the scope of the bill was modified to cover only those multiheaded agencies headed by officials appointed by the President with the advice and consent of the Senate. Amendments were added specifying additional grounds justifying a closed meeting.
Rather than requiring an agency to maintain a transcript of electronic recording of all its meetings, the bill was amended to require a verbatim transcript only of those meetings closed to the public. Meetings discussing cases in adjudication were exempted from the transcript requirements in all instances. Otber amendments per. tainted to preventing district courts from overturning substantive agency action taken at a meeting improperly closed to the P ic
and an ex parte provision limited to apply nly to formal on-therecord agency proceedings.
8 See U.S. Congress. senate. Committee on Government Operations. Government ta the Sunabine Responses to Subcommittee Questionnaire. Committee print, 98d Congreas, lot sees. Wasbington. U.S. Govt. Print. Off.. 1974. 128 pp.
A See U.S. Congress. Senate. Committee on Government Operations. Government tu the Sunsbine. Hearings. 93d Congress, 2d session. May 21 and 22; and October 15, 1974. Wasbington, U.S. Govt. Print. Off.. 1974. 397 p.
9 U.S. Congreog. Senate. Committee on Government Operations. Government In the Sunabine. Wasbington, U.S. Govt. Print. Off., 1975. 62 P. (94tb Congress, let session. Senate. Report No. 94--354) finfra, p. 1931.





3

Other provisions clarifying the rdationshl. between the Sunshine bill and the Freedom of Information Act the Privacy Act were
also adopted. Due to the impact of the propos l. on congressional procedures and its ex parte communications provision amending the Administrative Procedure Act, the measure was referred to the ommittee on Rules and Administration and the Committee on the Judiciary, respwAively. No additional hearings were held by either committee.
The Committee on Rules and Administration reported the bill (S. Rept. 9"81) on September 18.6B a 8-0 vote, the Committee on Rules and Administration removed t e congressional title (title I) of the Sunshine proposal before reporting it, stating that, with regard to open meeting procedure, "in respect to congressional committees such purpose would more properly be achieved by direct amendment of the Standing Rules of the Senate, rather than by amendment of the
-.91ative Reorganization Act of 1946.11 Title 11 of the bill was left unchanged. The Committee on Rules and Administration concurrently reported (S Rept. 94--382), a, resolution (S. Res. 9) amending the rules of the Senate regarding open committee meetings, and it was subsequently adopted by that chamber on November 5. The Rules Committee. Report was also filed on behalf of the Judiciary Committee which agreed "to report the bill with the reservation of the right to file on the floor of the Senate proposed amendments to this legislation at a later date." On the first day of discussion, it was agreed, to treat as original text on the floor the Rules Committee version of the bill in which the congressional title was deleted.'
During the course of deliberations on the measure the following day, the bill was passed with an amendment providing that financial regulatory agencies not be required to have open meetings when there is danger of "significant" financial speculation. The previous ]anguage; used the term "serious" financial speculation. Another technical amendment was agreed to which was intended to conform the legislation to the Administrative Procedure Act. At the, conclusion of these deliberations, the Senate approved the bill on a 94-0 roll call vote.
In the House a companion to Senator Chiles' Sunshine propoml (S. 5) was first introduced (H.R. 466) by Representative Don Fuq a (D.-Fla.) on January 14, 1975. A modification. of the Chiles bill, devoid of the congressional title, was offered (H.R. 5075) by Representative Dante Fascell, (D.-Fla.) on March 18. Later, on September 26, Representative Fascell introduced another version of this legislation (H.R. 9868) reflective of changes in the bill as reported by the Senate Committee on Government Operations.
On October 22, Reprewntative, Bella Abzug (D.-N.Y.), Chairwoman of the Subcommittee on Government Information and Individual Rights of the Committee on Government Operations, introduced a revised version of the Fasce,11 measure, (H.R. 10315). This propoml and the latter Flascell bill were referred to the House Committee on Government Operations where they were assigned to Representative Abzug's subcommittee for consideration.
10 U.S. Congress. Senate. Committee on Rules and Administration. Government In the Sun-shine Act. Washington, U.S. Govt. Print. Off., 1975. 3 p. (94th Congress, Ist session. Senate. Re0ort No. 94-MI) tinfra- P. 3151.
Sft Coigreftional Reeord, v. 1211 November 5, 1975 S. 19337-S19372 tInfra. p. 318 1.





4

Hearings onr Sunshine legislation were hield by teSbomte on Government Information and Individual Rigt nNvme.
and 12. In addition -to a waiety of statements and materials sbite for the record, testimony was received from speb sesforth Association of the Bar for the City of New Y4V eAmeitahBa Association, common Cause, and two ptubliain-Avets g
and the Nashville Tennessean. Representative Fas11l made. presemta~tion before the panel, as did officials from the Federal RsreSs tern, the Securities and Exchange Cmison, the JustieDpat ment, the Federal Communications Conmmission, and the Cnue Product Safety Commission."
Following the hearings before ithe Abizug sbomfeadi e
spouse to some of the suggestions made at those hearings areid version of the legislation (H.R. 11007) wa.s introduced by Reprsn tative Abzug on December 4. The 'subcommittee marked up the new bill on December 15,16, and 17, 1975, and January 20 and 21,1976. The final subcommittee version included a provision overturning a Supreme Court decision (Administrator, FAA v. Robertson,, 422 Uh. 255 (1975)) regarding the third exemption of the Freedom of Information Act (5 U. S.C. 552 (b) (3) ), so that it would exempt from disclosure only material required to be withheld from the public by a statute establishing particular criteria or referring to particular types of information (the Robe rtson decision had held that the listing exemption included a statute permitting or requiring withholding, regardless of whether it contained specific criteria therefor).
The subcommittee version was introduced as a clean bill (H.1R. 11656) by Representative Abzug and 24 other sponsors from both parties on February 3, 1976. This measure was ordered reported (H. Rept. 94-880, Part 1) by the full Committee on Government Oprations on March 2 by a 32-7 vote.'
At the direction of the Speaker of the House, the bill was then referred to the Committee on the Judiciary. The Subcommiitteeo Administrative Law and Governmental Relations held hearings on March 24 and 25.10 Thereafter, certain amendments to the legislation were proposed by this panel. The full Judiciary Committee favorably reported (H. Rept. 94-880, Part II) the proposal, as amnended, -by a voice vote on April 6.11
The measure was debated under -an open rule (H. lies. 1207W) in the 'House on July 28. Prior to adopting the bill by a yea-and-pay vote of 390-5, the chamber agreed to an amendment in the nature of a substitute incorporating all of the recommendations of the panels reporting the proposal. Various other amendments were agreed to, including one eliminating the requirement for transcripts of closed meetings, one applying the bill's exemptions to meetings of advisory corn*See U.S. Congress. House, Committee on Government Oper'ations. Government in the Sunshine. Hearings, 94th Cong., lot sees. November 6 and 12, 1975. Washngton, U. Govt Print Off., 1975. 565p.
9U.S. Congress. House. committee on Government Operations. 0ov#Immet in th6 Sunehine Act.' Washington, U.S. Govt. Print. 40 p. (94th Cnrs,2d sesson,. Hove& Reort No. 94-880, Part!1) [infra, p. 5121.
aSeU.S. Congress. House. Committee on the Judtiiar, 0.wenwmt in ths *Sme"
Ac. earings. 94th Congress. 2d Sesion, March 24 and 2, 1976 Wasbinston, U,.S. Go~t.
11 U.S. Conrss. Ruse. Committee on the Ju~iagGvmet4 h a~ieAt
WashioU.S. Govt. Print ON., 1976. 48 p 4th Congess, 2 eso.H
Reprt 00.4-80.Part 11) flnfra, P. 5511.





5

mittees as well as agencies, and one narrowing somewhat the amendment tothe third exemption of the Freedom of Information Act. Subsequently, this passage was vacated, and S. 5 was passed in lieu
-being amended to contain the lang
of the House bill after ruage of the
12
House version as enacted. A conference was then called on the differ ingfroposals.13
ee ing on August 5, the conference committee, chaired b House
Government Operations Committee Chairman Jack Brooks -Tex.)
and drawn from the membership of the two Committees on Government Operations and the House Committee on the Judiciary, resolved 9 major and 38 minor points of disagreement between the two proposaI& 14
Among the principal differences settled were an understand inLr of "meeting 11
The Senate version defined meeting to mean "the deliberations of at least the number of individual agency members required to take action on behalf of the agency where such deliberations concern the joint conduct of disposition of official agency business." The House defined meeting to mean "a gathering to joindy conduct or di jx) e of Ugency business by two or more but at least the number of individual agency members required to take action on behalf of the agency." The compromise version defined "meeting" to mean "the deliberations of at least the number of individual agency members required to take action on behalf of the agency where such deliberations determine or result in the joint conduct or disposition of agency business", but not deliberations to take action to open or close a meeting, or to release or withhold information under certain sections of the Act. (The joint statement of the committee of conference noted that the definition of 4meeting" is meant to include conference teleDhone calls if they involve the requisite number of members and otterwise come within the definition.)
The conference also resolved that, unless otherwise provided in the statute, every portion of every meeting of an agency within the scope of the Sunshine Act', including a subdivision, shall be open to public observation. The joint statement of the committee of conference noted that this provision is intended "to guarantee that ample space, sufficient visibility, and adequate acoustics will be provided."
Section 5(b) of the conference substitute amends the third exemption in the Freedom of Information Act, 5 U.S.C. 552 (b) to include information "specifically exempted from disclosure by statute (other than section 552b of this title) provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave. no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld."
In considering* the Sunshine Act exemption (5 U.S.C. 552b(c) (3)) and accompanying provision amending the comparable Freedom of ]Information Act exemption (5 U.S.C. 522 (b) (3) ) pertaining to statutes restricting the disclosure of information, the conference indicated thew modifications apply only to a statute that either "requires that the information he withheld from the public in such a manner
12 See CO sional. Record. v. 122, July 28, 1976: H7863-H7902. [infra. p. 5951. "See c0=11sional. Record, v. 122, July 29, 1976: S. 12839; Tbid., August 3, 1976: H8228, [Infra 7271
14 See Staff eopn'feren e Memorandum [Infra, p. 7731.





6

as to leave no discretion on the issue, or (B) Establiahes partieular criteria for withholding or refers to particular types of iiiTomation to be withheld."
The conferees intend this langmr to overrule the'deci
sion of the Supreme Court in Adxdnistrator, FAA v. RobM8on, 422 U.S. 255 (1975), which dealt with section 1104 of the Federal Aviation -Act of 1958 (49 U.S.C. 15o4). Another example of a statute whose terms do not bring. it within this.exemption. ig section 1106 of the Social Security Act (4.2 U.S.C.
1306) 5
In the matter of transcripts, recordings, and minutes of, meetings, the conference substitute provides that transcripts, verbatim recordings, or in some cases detailed minutes, must be made of all meetm*gs closed to the public. According tothe Joint Statement of the Committee of Conference, the Act:
requires that before a meeting may be closed the General Counsel or chief legal officer of the agency must certify that, in his or her opinion, the meeting may prop Tiy be closed and state each relevant exemptive provision. A copy of such certification, together with a statement from the presiding officer of the meeting setting forth the date, time, and place of the.
meeting, and the persons present, shall be retained by the agency as part of the transcript, recording, or minutes of the,
meeting.
The agency shall make a verbatim transcript or electronic
recording of each meeting or portion closed to the 'ublic, except that for a meeting closed under exemptions (8) (bank reports), (9) (A) (information likely to lead to financiaJ speculation), and (10) (adjudicatory proceedings or civil actions), the agency may elect to make either a transcri t
recording, or minutes. If minutes are kept, they must Day and clearly describe all matters discussed, provide a full and accurate, summary of any actions taken and the reasons expressed therefore, and include a description of each of the views expressed on any item. The minutes must also reflect the vote of each member on any roll call vote taken during e Proceedings and must identify all documents considered at the
meeting. 16
Transcripts, recordings, or ininutes of meetings governed by the Sunshine Act and not exempt from disclosure 1;y' the Act must be made promptly available to the public. The statement of managers provided:

0 Copies of the nonexempt portions of the transcript, or
minutes, or a transcription of the recordin disclosing the identity of each speaker, must be furnish:f to any person
at the actual cost of duplication or transcription.
The complete transcript. minutes, or recording of a closed
meeting is to be maintained by the agency fot at least two
Is U.S. Congress. Senate, Committee of Conference. Government In the Sunshine, 1Wrassh In n, U.S. Govt. Print. 011., 1976, 94th Congress, 2d session, Senate t No. 94-117& P-140. [an identical version of the conference report was filed In the iffouse as ff. Rept. 94-24411 (infra. P. 783-8121.
16 lbtd.. pp. 19-20 f Infra. p. 801-802).





7

years after the mee.tin or one year after the conclusion of the agency proceeding wtich was the subject of the meeting,
17
whichever occurs later.
The conference reconciled differences on the issue of attorney fees by
adopting a provision granting the courts the authority "to assess against any party reasonable attorney fees and other litigation costs reasonably incurred by any other party who substantially prevails" in an action taken under the Sunshine Act."' Costs may be assessed against a plaintiff only when such a suit has been instituted for N frivolous or dilatory purposes. Assessments against an agency may be
drawn from the Treasury of the United States. The conferees dropped a Senate provision that would have made an agency commissioner personally liable for the expenses of litigation where the commissioner N., was found to have violated the Act intentionally and repeatedly.
The conference report was filed in the House (H. Rept. 94-1441)
on August 26 and in the Senate (S. Rept. 94-1178) the following day.""
On August 31, the House, on the motion of Representative Jack Brooks (D.-Tex.) Chairman of the House Government Operations Committee, agreed to the conference report by a 384-0 yea-and-nay vote and'
the Senate agreed to it by voice vote, clearing the proposal for the
President's signature.20
5 The President signed the bill (P.L. 94-409) on September 13,1976.21
Ibid., p. 20 Infra, p. 802
See Alyeaka Pipeline Service Company v. Wilderne8s Society, 421 U.S. 240 (1975).
"See Congressional Record. v. 122, August 26, 1976: H9137-H9145 ; Ibid. *, August 27,
1976: B14709 [813-827).
See Ibid., August 31, 1976; H9258-H9262, S15043-815045 [Infra, pp. 813-827].
2190 Stat. 1241 [infra, pp. 8-15] ; See Weekly Compilation of Presidential Documents,
v. 12, September 20, 1976: 1333-1834 Infra. pp. 831-832









Public Law 94-409
94th Congress, S. 5
Septernber 13, 1976

21H act
Tb provide that meetings of Government agencies shall be open to the public, and for other purpoEes.

Be it enacted by the Senate and H&u8e of Repre8entativeg of the
United State-8 of Ameiica in Congrem cwsembled,'That this Act may c*vemment be cited as the "Government in the Sunshine AcV1. in'the
Sunddue Act.
DECLARATION OF POLICY S USC 552b
note,
SEC. 2. It is hereby declared to be the policy of the United States that S USC SS2b the public is entitled to the fullest practicable information regarding natethe decisionmaking processes of the Federal Government. ItJs the purpose of this Act to rovid the public with such information while protecting the rights o individuals and the ability of the Government to carry out its responsibility&
OPEN XEETINGS
SEC. 3. (a) Title 5, United States Code, is amended by adding after section 552a the following new section:
552b. Open meetings S USC SS2b,
(a) For purposes of this section- Ddluttlow.
(1) the term 'agency' means any agency, s defined in section
552(e) of this title, beaded by a collegial bwy composed of two 5 USC 552.
or more individual members, a majority of whom are appointed to such position by the President with the advice and consent of the Senate, and aily subdivision thereof authorized to. act on
behalf of the agency;
(2) the term 'meeting' means the deliberations of at least the
number of individual agency members required to take action on behalf of the agencV where such deliberations determine or result in the joint conduct or disposition of official agency businew, but does not include deliberations required or permitted by
subsection (d) or (e) ; and
"(3) the term 'member' means an individual who belongs to
a collegial body heading an agency.
(b) Members shall not jointly conduct or dispose of agency businesss other than in accordance with ihis section. Except as provi6d In subsection (c), every portion of every meeting of an agency shall be open to public observation.
11 (c) Except in a case where the agency finds that th ublic interest -requires otherwise, the second sentence of subsection b) shall not apply to any portion of an agency meeting, and the requirements of Subsections (d) and (e) shall not apply to any information pertaining to such meeting otherwise required by this section to be disclosed to the public, where the agency properly determines that such portion or portions of its meeting or the disclosure of such information is likely to" (1) disclose matten that are (A) speeifically authorized under
criteria established by an Executive order to be kept secret in the



90 STAT. 1241













in-stat (A) reqirenat thene mars hejg wihheld rom the publi
inpel uchassannersuto evto scrEectin orterise; o B
Istablesoticlar torinteral oreithonldgo refs tod paties
oflar typencfmttryoewthed
"(4 disclose mtr spectiady exonunedalom inacliorma-y
5 US 5tion ota ned frome ta erinm and prtivile)d poroniden tial:uc
i(n iuha nver s a ny polaernof crim or formallyo (Bnsuring any person:
11(6) disclose information of a personal nature where, disclosure
would constitute a clearly unwarranted invaision of personal
prhvacy;
"(7) disclose investigatory records compiled for law enforcementpuroses information which if wr itten would tI contained in such records, but ouly to the extent that the production of such r-ecords or information would (A) interfere wiith enforceanent pr-oceedings, (B) deprive a person of a right to a fair- trial o r an impar-tial adjudicntion, (C) constitute an unwarranted invasion of personal privacy (D) disclose the identity of a confidential sentre and, in the cnse of a record compiled by a criminal lawrenforcement authority in the course of a criminal investig~ation, or by an agency conducting a..lawful national security intelligence investigation, confidential informaion fmrnished only by the confidential source, (E) disclose inves -tigative techniqunes and procedures, or (F) endanger the life or physical safety
of law enforcemet personnel;
"(8) disclose information 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;
"(9) disclose information the premature disclosure of which
would"(A) in the case of an agency which regulates currencies,
securities, commodities, or financI institutions, be likely to (i) lead to significant, financial speculation in cur-rencies, securities, or commodities, or (ii) significantly endanger the
stability of ainy financial institution; or
"(B) in the case of any agency, he likely to significantly
frustrate implementation of a proposed agency action.





10


September IS, 1976 3 Pub. Iaw 94-49

I" (d)t(1) Action under suibsetlln (*) shall be taken only wlen a Recarded majoraty of the entire membership of flhe agency (as defined irb- voting. sect ion (a) (1) ) votes to take such aetlon. A separate vote of the agency members shall be taken within respect to each agney met" a portion or portions of wieh are proposed to be clsdto the pubicuruant to sulmeetion (a), or with respect to any infarnation wihis proposed to te withheld under subsection (c).:. sing voaten my bm taken with respect to a series of meetings, a portion or portionsetfwhich are proposed to be closed to the public, or with respect to any information concerning such series of meetings, so long as each inusting in anch series involves the same particular matters and is schedhted to be held no more than thirty days after the initial meeting ih such series. The vote of each agency amlmer participating in anch vote shall be recorded and no proxies shall be allowed.
"(2) Whenever any person whose interesis may t* directly affected by a portion of a maeetmng requests that the agency cloe such portion to the public for any of the reasons referred to in paragraph (5). (6). or
(7) of ausoetion (c), the agency, upon request of any one of its meanters. shall vote by recorded vote whethsv-r o close sawhi meeting.
"(3) Within one day of any vote taken, puranant to paragraph (1) Copies,
or (2), the agency shall make pahlicly available a written copy of :uoch availabiliy. vote reflecting the vote of each vmeranilthe qpeation. If a portion of a meeting is to be closed to the public, the agency shall. within oe dayv of the vote taken perstant to paragraph (1) or (2) of thisaulmieeties,. make publicly available a ftid) written explanation of its actionelesing the portion tog ether with a list of all persons expected to attend the meeting and their affiliation.
"(4) Any agency, d majority of whose mneetinpa m1ay properly be Maealng closed to the public pursuant to paragraph (4). (8). (9)(.1). or i(10) elmsw, of aniberetion (c). or any combination thereof, may provide by regula- Ieua'm tion for the closing of such meetings or portions thereof in thie event that a majority of the memnbra of the agency votes. by recorded vote at dhe teginning of such meeting. or portion thereof, to -lo,+, the exempt portion or portions of the meetmng. and a copy of such vote, reflecting the vote of each mlmer on the quemtion. is mande available to tie public. The provisions of paragralden (1). (2). ad (3) of this sulaerson and sitdietion (e) shall not apply to any portion of a-meeting to which such regulationss apply:b Pri ed. Thait thi aenevshall. Public except to the extent that such addrmnationl is exempt frem dIi4-schmre anouncement. under the provisions of enteredton (c). provide the public, with publlic announcement of the tine. place. and enh~ject matter of thlwanting and of each portion thereof at fle earliest practicable time.
ti(e) (1) In dhe case of each meeting, the-apency shall make pulic Scheduling, announcement. at least one week before the meeting, of dwe time. plave, public and subject matter of the meeting, whether it ist to open or closed to announcement the public, and tie namne and phone numbr -;t the officinl designated by the agency to respond to requests for information atbint dhe ntmyg. Such announcement shall be made unless a majority of the memlersi- of the agency determines by a recorded vote that speary business rqures that such meeting to) called at an earlier date. in which case the speney shall make public anneunmmenet th time, place, and subject matter of eark meeting. and whether* open or doned to the public, at the earliest practicable time. .-"(9) The time or place of a meeting may be changed following the Scheduling public announcement required by paragraphs (1) only ifth duagency casat Publicly announmes such change at tied earliestrpretrcable timi. The Pubtlec announcement


90 STAT, 1243









Pub. Law 94-409 4 September 13, 1976

subject matter of a meeting, or the determination of the agency to open or close a meeting, Mon of a meeting, t? the public, may be changedfollowingthe poubfi*c announcement required by this subsection only if (A) a mal*ority of the entire membership of the agency determum by a recorded vote Oat agency business so requires and that no earlier announcement of the change was possible, and (B) the agency publicly announces such change and the vote of each
member upon such change at the earliest practicable time.
Scheduling "(3) Immediately following each public announcement required by
mcdcot Pub- this subsection, notice of the.time, place, and subject matter of a licatIon tn meeting, whether the meeting is open or closed, any change !n one of Federal the preceding, and the name and phone number o! the official desigRegister. nated by the agency to respond to requests for information about the
meeting, shall also be submitted for publication in the Federal
Register.
Closed rneet- "(f)(1) For every-meeting closed pursuant to paragraphs (1) hw, certifi- through (10) of subsection (c). the General Counsel or chief legal cation. officer of the agency shall publicly certify that, in his or her opinion,
the meeting may be closed to the public and shall state each relevant exemptive provision. A copy of such certification, together with a statement from the presiding officer of the meeting setting forth the time and place of the meeting, and the persons present, shall be retained by Transcripbs the agency. The agency sliall maintain a complete transcript or elecrecordings or tronic recording adel 1 t to record fully the proceedings of each minutes. meeting,) or portion 0 a ting, closed to the public, except that in
the case of a meding, or portion of a meeting, closed to the public pursuant to paragraph (8), (9) (A), or (10) of subsection (c), the agency shall maintain either such a transcript or recording, or a set of minutes.
Such minutes shall fully and clearly describe all matters discussed and shall provide a full and accurate summary of any actions taken, and the reasons therefore, including a description of each of the views expressed on any item and the record of any rolleall vote reflectione the vote of each member on the question). All documents considered in
connection with any action shall be identified in such minutes.
Public avall- "(2) The agency shall make promptly available to the public, in a ability. place easily accessible to the public, the transcript, e1w-tronic recording, or minutes (as required by paragraph (1)) of the discussion of any item on the agenda, or of any item of the testimony of any witness received at the meeting, except for such item or items of such discussion or testimony as the agency determines to contain information which may be withheld under subsection (c). Copies of such transcript, or minuteiq or a transcription of such recording disclosing the identity of each speaker, shall be furnished to any person at the actual cost of Retention. duplication or transcription. The agency shall maintain a complete
verbatim copy of the transcript, a complete copy of the minutes, or a complete electronic recording of each meeting, or portion of a meeting, closed to the public, for a period of at letlst'two years after such meeting. or until one year after the conclusion of any agency proceeding with respect to which the meeting or portion was held. whichever
occurs later.
Regulations. (g) Each agency subject to the requirements of this section shall,
Notices Pub- within 180 days after the date of enactment of this section, following lication In consultation wiih the Office of the Chairman of the Administrative Federal
Conference of the United States and pnblished. notice in the Federal Register.
Register of at least thirty days and opportunity for written comment ky any person, promulgate regulations to implement the requirements



90 STAT. 1244





12


September 13, 1976 5 Pub. Law 94-409.
of subsections (b) through (f) of this section. Any p "s nmay bring a J icial1 proceeding in the United States District Court for the District of Poced Columbia to require an agency to promulgate such regudations if such agency has not promulgated such regulations within the tine period specified herein. Subject to any liimitationsof time provided by law.any person imay bring a proceeding in the United States Court of Appeals for the District of Columnbiato set aside agency regulatiops issued pursuant to this subsection that are not in accord with the reqjirenments of subsections (b) through (f) of this section and to require the promulgation of regulations that are in accord with such subsections.
"(h) (1) The district courts of the United States shall have urisdic- Jurisdiaon. tion to enforce the requirements of subsections (b) through f ot this section by declaratory judgement. injunctive relief, or other relief as may be appropriate. Such actions miay be brought by any person against Civil an agency prior to, or within sixty lays after, the meeting out of which actions. the violation of this section aries, except that if public announcement of such meeting is not initially provided by the agency int accodalCe with the requirements of this section, such action may be instituted pursuant to this section at any time prior to sixty days after ay public announcement of such meeting. Such actions imay he brought in the district court of the United States for the district, in which the agency meeting is held or in which the agency in question has its headquartens, or in the District Court for the District. of Columbia. In such actions a defendant shall serve his answer within thirty days after the service of the complaint. The burden is on the defendant to sustain his action. In deciding such cases the court may examine in cnera any portion of the transcript, electronic recording. or minutes of a meeting closed to the public, and may take such additional evidence as it deems necessary. The court, having due regard for orderly administration and the pub- Relief. lie interest, as well as the interests of the parties, may grant such equitable relief as it deems appropriate, including granting an injunction against future violations of this section or ordering the agency to make available to the public such portion of the transcript. record, or minutes of a.meeting as is not authorized to be withheld umr subsection (C) of this section.
"(2) Any Federal cout otherwise authorized by law to review Inquiry. agency action may, at the application of any person properly participating in the proceeding pursuant to other applicable law, inquire into violations by the agency of the requireients of thissertion and afford sech relief as it deems appropriate. Nothing in this section authories any Federal court having jurmliction solely on the basis of paragraph
(1) to set aside, enjoin. or invalidate any agency action (other than an action to close a meeting or to withhold information under this section) taken or discussed at any agency meeting out of which the violation of this section arose.
"(i) The court may assess against any party reasonable attorney Litigation fees and other litigation costs reasonably incured by any ether party costs, who substantially prevails in any action brought in accordance with assesment. the provisions of subsection (g) or (h) of this section. except that costs may be assessed against the plantiff only where the court finds that the suit was initiated by the plantiff primarily for frivolous or dilatory purposes. In the case of assessment of costs against an at'enCy, the costs may be assessed by the court against the United State.
"(j) Each agency subject to the requireiments of this section shall RepoRt to annually report to Congress regarding its complianc, with mdih Corw. requirements, including a tabulation of the total number of agency



90 STAT. 1245











Men o yt ingcosd any










For cing h meeting a a oder option of
(in) bou tga inth this section ncl w ahhold onsts e ed y theis aec ing whie is other e to such

pio tevoedi the agnc)
5S 552 pe atio exeton,



-ot insbetocftin section a roe o the s.o n
reus mad pusun to seto 55 to cop orisettetas rips













KP tin relet to "(1 T s d iny
inomto frmCnrsaddosnt-uhrz tecoigo n


eo reuie byayohrpoiino
agnc metn or potin he





14


September 13, 1976 7 Pub. Law 94-409

"(iii) all written responses, and memoranda stating the
substance of all oral responses, to the materials described in
clauses (i) and (ii) of this subparagraph;
"(D) upon receipt of a communication knowingly made or
knowingly caused to be made by a party in violation of this sub, administrative law judge, or other empl(kyee spercets'iodllintglleatfttglen7ieai-iiig may, to the extent consistent with the interests of justice and tile polic of the underlying statutes, require the party to show cause w ly his claim or interest in tile p oceedinfr should not be dismissed, denied, disregarded, or otherwise adversely affected on account of such violation; and
"(E) the prohibitions of this subsectimi ,,hall apply beginning Applicability,
at sucli time as the agency may designate, but in no case shall they begin to apply later than the time at which a proceeding is noticed for hearing unless the person responsible for the communication has knowledge that it will be noticed, in which case the prohibitions shall apply beginning at the time of his acquisition of such knowledge.
(2) This subsection does not constitute authority to withhold information from Congress.".
(b) Section,551 of title 5, United States Code, is aniended(1) by striking out "and" at tile end of paragraph (12)';
(2) by striking out the "act."at the end of pai -agraph (13) and
inserting in lieu thereof "act; and"; and
(3) by adding at the end thereof the following new paragraph:
"(14) 'ex parte communication' means an oral or written com- "Ex paste
munication not oil the public record with respect to which reason- communicaable prior notice to all parties is not given, but it shall not include tion.
requests for status reports on any matter or proceeding covered
by this subehapter.".
(c) Section 556(d) of title .5, United States Code, is amended by inserting between the third and fourth sentences thereof the following new sentence: "The agenev may, to the extent consistent with tile interests of justice and the policy of the underlying statutes administered by the agency, consider a violation of section 557(d) of this title siiffi- 5 USC 557. cient grounds for a decision adverw to a party who has knowingly committed such violation or knowingly caused such violation to ocell 11.
GONTFORMING AMENDMENTN
SF,(,,. 5. (a) Section 410(b) (1) of title 39, ITnited States Code. is amended by inserting after "Section 5152 (piiblic information)," tile words "section 552a (records about individuals), section .5,521) (open meetings).".
(b) Section .552(b) (3) of title .5, United States Code, is amended to read as follows:
"(3) specifically exempted from disclosure by statute (other
than section 5.52b of this title), provided that sticli statiite (A) requires that the matters be witl)held from the public in sm-h a manner as to leave no discretion oil the issue, or (B) establishes particular criteria for witbholding or refers to particular types
of matters to be withheld;". r"
(c) Subsection (d) of section 10 of the Federal Advisory Committee
Act is amended by striking out the flrstsentence and inserting in lieu 5 USC app. 1. thereof the following: "Subsections (a) (1) and (a) (3) of tbis.wetion shall not apply to any poition of an advisory committee meeting where



.9U STAT, 1247




T16




Pub. Law 94-409 -8 September 13, 1976

the Peint,or theea of the agnyto whc the advisory comncloedtoth pbli i acodacewi3&osubeto (c) of scin52
of titleS5, United States Code.".

F.P7CTMDATE

sUSC S m 6. (a) Exetasprovi in ~ (b) of this ection, the
noteproviionsof this Act shall take effect 180 days after the date of its

(b)Subecion (g) of section 552b of title 5, United States Code, as
addby seton3(a) of this Act, shall take effect upon enactment.
Approved September 13, 1976.

















HOUSEREPOTS- No 94- 880, Pt. I and No, 94-880, Pt. 2, accompanying HR. 11656 (Com. on G>overnment Oerations) and No. 94-1441 (Comm. of Conference). SENTEREPOTS- No. 94-354 (Comm. on Government Operations), No, 94381 (Comm. on Rules and Administration) and No. 94-1178 (Comm~. of Conference).
CONRESSIONAL RECORDVol. 121 (1975Y Nov. 5, 6, considered and passed Senate.
Vol.~ ~ 12 17 uy 28, cosdee and passed House, amended, in lieu of H. R. 11656.
Aug. 31, House and Senate agreed to conference report.

Vol. 1, N.38 (1976)Sept. 13, Presidenialstatement.


































SENATE ACTION













[From the Congressional Record-Senate, Aug. 4, 19721
(S 1279" 12811)
INTRODUCTION OF S. 3881 BY SENATOR LAWTON CHILES, A U.S. SENATOR FROM THE STATE -oF FLORIDA
S. 3881. A bill to provide that meetings of government agencies and of congressional committees shall be open to the public, and for other purposes. Referred to the Committee on Government Operations.
FEDERAL GOVERNMENT IN THE SUNSHINE ACT
Mr. CHILEs. Mr. President, in 1913, Supreme Court Justice Louis D. Brandeis wrote:
Publicity is justly commended as a remedy for social and industrial disease. Sunlight is said to be the best disinfectant and electric light the most efficient policeman.
Justice Brandeis could just as well have applied these remedies to the overnmental process, for democratic self-government and an inOIrmed citizenry just naturally go hand in hand, making essential the conduct of public business in the open, "in the sunshine." Only with such o enness can the public judge and express, through its vote, or voice, whether governmental decisions are just and fair.
Since I came to the Senate last year, I have become very disturbed by the great amount of public business I have found being conducted behind closed doors and by the attitude of secrecy I have seen in our Federal Government agencies. I am not surprised that people are suspicious of our motives and are losing confidence in their government when they are shut out of the decisionmaking process.
Sol I am introducing the Federal "Government in the Sunshine Act", which seeks to assure the openness of our governmental processes and to restore public confidence in those processes. It seeks to do this through a simple requirement: all meetings of Federal authorities and congressional committees shall, subject to certain exemptions, be open to the public. Citizens will have the right to attend meetings in which they have a personal interest, and news media and other interested groups will have access which will insure a broader dissemination of information on public affairs.
The proposed law provides for open meetings of all Federal governmental authorities except the courts and the military. In particular, it applies to Federal regulatory agencies and commissions-such as the Interstate Commerce Commission, the Federal Trade Commission, and the Civil Aeronautics Board-which are responsible for serving the public interest. It would apply to the committees of Congress, which have for too long conducted too much of their- business behind closed doors.
(19)





20

Mr. President, I ask unanimous consent to have the full text of the bill printed in the Record.
There, being no objection, the bill was ordered to be printed in the Record, as follows:







21
2o SESION




IN THE SENATE OF THE UNITED STATES AUGUST 4,1971
Mr. Omras introduced the following bill; which was read twice and reere
to the Committee on Government Operations




A BILL
To provide that meetings of Government agencies and of congressional committees shall be open to the public, and
r other purposes.
Be it enacted bY the Senate and House of Representa2tives of the United Siares of Amnerica in Congress anaembled,
3 That (a.) except as pr-ovided in suibs-ection -(b), all mneet4ings (including meetings to conduct hearings) of any Gov5 erinent agency at which any official action is conidered
6 or disonssed shall be open to the public. '7 (b) Subsecticui (a) shall not apply to that portion of 8 any meetings in which the action or proposed nation to be
9 taken, considered, or discuss-ed by an agencyN II











2 rity,

3 (2) rltssll oteitra aae eto

4 such agency,


6 or reputation of any individual woissujctoayp 7 posed or potential sacinby suhaecor

8 (4) might dvlemtesrqie ob etcn




11 meetings or the withiholdn of inmato rmtepbi










17 the Federal Registrpoeuefoprvdnpblcoie








22 SE. 2. (a) Seton 1339(b) o h eiltv era 23 iainAto196aamnebyscin13()oth 24LeiltvReraiainAto190iamneasfl 25 IOWS:







23o










4 cpt henth co mitee etrie that the mattes to anyrohe otherion ofivd


10bekptcofdetalune ohe roiios>fla.




(2)Clase 7 () () f rle I o th Ruesofth






12 House- f Represenatives isamnetora asflw:
















ii
124












244
1 viio( of this kc coie of suc trncrp shl prompt

2 yb aealbefrpblcisetosadcpig















3 SEC 4. Te ditrc cort of th UniedStte..al 4~~ hav orgnljrsito fatin orne elrtr
5~~ juget rt nocb nunto rohrie h is
6~~~~~.. seto of t]i Ac eto 3isfa si eae ota
7 etol ,1hqtosna ebogi yaiyprNni h





25

Mr. Cjanm. Mr. President, the bill can be easily summarized.
Section 1 roquires all meetinTs of i Government agencies at which 4 to be open to the public,
official action is'taken, considered or discussed with certain ex(*Ptions. Exceptions would be in matters relating to national defenseman security or any matters required by statute to be kept confidential meetings related to an agency's internal management- and discip 9 ary procA5edings which &6uld adversely affect tle reputation of an individual. This section would also. require agencies to adopt procedures for providing the public with advance notice of meetings.
Section 2 requires that meetings of congressional committees shall be open to the public, with exceptions similar to those cited for meetings ol Governpient, agencies.
Section 3 requires that a transcript, available to the public, be made of meetings of GoverDm agencies and congressional committees.
Section 4 provides for court enforcement of the open meeting requirement for Government agencies upon suit brought "by any person.
Section 5,clefines agencies-'referred to in the act as all multimember Fedei l authorities other than the courts, Congress, or military authorities. This section also broadly 4efines the "Person" who may seek court enforcement of the act's provisions.
Slection 6: provides that the.' act shall be effective 90 days after enactment,
I would like to express my indebtedness to Prof. Richard B. Stewart of the Rarvard University Law School for his expert counsel in the 4raftffig of this measure.
There.. ii.good practical precedent among..the States for a Federal open meeting law. I cite the examples of two States where sunshine is particularly abundant and where sunshine laws have been conducive to good ment. California was'o'ne of the first States to enact
an, open e g law; Florida -passed a comprehensive "Governmentm'-the-S Act in 1967, and since I was a member of the Florida
Le islature at that timeJ &m especially familiar with it.
Z car. as 1953 the Califo' iaAssembly enaeted the Brown Act, wW'4,males provi'slion'for open piiblic meetings for all local governnNnt agencie&-but not-State government. The California attorney
ral also ruled that the act applies to legi aI tive bodies of chartered
The case tha brought forth that ruling was an instructive one, for it Vold, invalicl' a San Diego ouncil, resolution restricting atthfidaii&at 4'wutidl confennce" by requiring citizen to regn'ster for tht meptings and to agree to silence, The basis for that ruflng is an eloquent statement at the ease &i sunshine laws: The right and abMty of the People to have free and open &teem to an meetingg 0 local legida4ve bodies b vital to the Preservation of an Informed electorate
capeatuteo an guard t4 democratic government The existence
of deTIOM 100pholea or subWxf uM whieh.tind to "cabin, crib or confine" -the pub11L -,ftow free aeftp to the mtb#m ano deliberations of their local governmental AgObOl4a Ii Contra' t6thePubile poney of this State.
that all: public Oiidties in theState "exist to aldiu. the conduct of the people's bosinem.11 It declares all meetings of local legislative body or agency to be "open and public," with no conditions on attendance by the public. The time and place of regular






meetings axe to be made known. Special -meetmngs must be. formally annoumeed, with adequlate notice given to the public and. c mmunim=tions media. The law is rightly flexible, granting the 4hgAA of public bodies to exesutivae essons, specifically in the case of ypanq actin. certain comiplaint cagsand matters stfeeti the notinal -.matits..
For those interested in bscresearch on the Calfornia Brown Act and its broader, relation tohe whole freedom of information question, I recommend the artile "Secrecy aid the Acems..to Admnitrative Records" by 1rof. Albert G. Pickerell, and I ask umhan*u cnent to have Professor Pickerell's article printed at this point in the record.
There bemng no objootion, the article was ordered to be printed in the record, as follows:
PAR V. AGENCIES AND Tna;Peacto0: SECBECY AND TE A100MBA TO A~mNdalevv Radonna
(By Albert G. Piakerell)*
11. THE PEDEBAla 80ENE
Stnce 1948 newspaper editors have been expressing anxiety7 over a "growing tendency" ,of government officials to suppress public faforniatonx *1in 1950 the American Society, of Newspaper Editors atuthorised Its Freedom of InfarMa~tionl Committee (wiceh previously had been prinarily conearnet with redkucing harriers to the deternational flow of iaformation) to undertake a general attack on the ''andemocratic practie"' of news suppressin? 2he charman of the committee reported a short time later that a "nation-ilde and indeasant guerrilla warfare was being waged against our' right of access to public infdrmatiotL*** 'There is arrogantt suppr'ession of news all over the place," he tod the 1951 ABNE convention? As a result a concerted campaign has been carried on by several newspaper organizations, espeelally the ABNE. At least four national associations have set up standing "freedom of information" comanittees," and almilar groups have been formed in many states to light news. Mipprebelon on state and local levels.'
Nutmerous protests of withholding. iatormation -of legitimate. intpest to the public have been lodged by these freedom of informationcmite as thy sought, by a -combinationi of publicity and legal action, to win broader seces to publice information. During the first half of 198M, for example, one gromp processed forty "major" cases, the "majority of which concerned deet government of one kind or another, or outright censorship by autocratic offists'!'"
In 1951 th6 ASNE commissioned Harold L_ Cross, veteran New York pesae
attorney, to continue a preliminary study and to prepare a. "eomprelicaene;p on cnatomns, laws and court decisions affecting our free access to t~r nn whether It is recorded on police blotters or in the fields of the national govera*Assoclate rre est ofJunaim University of Califoraia, 1*kly
See, .e. prceig ofth annual convention of the Ameriean SoewtyaperN Editors Gn N ALBS OF JORALS 1948 150-41, 418-69. "Our feee In they dmestield as wel as In tle International field. "BasilterBlei of the ..,Th problem cour*e Ispnot a new one. "Every laser~ sp91ot no minal
t ale over news that rathects some discredit on elected or pablV Oilletals.... This Is a conflict as old as government and news or government." res Kpop4 in CoseH, The People's Right to Know xv(1958).
&Editor& Publ1sher, .Tan.2 1951, p. 5. 1J..
4 ANAPrblmsof JourUs 161, p. 171.
Forreorsof the ASN see annual. volumes. of.Polm of $6orkallsand th e motlault of the ASE Also taking part, In the ea109h ae been the Amer1ca*
NewpaerFlblsherg Assecato, the' sfoolated Pesnn iMe Amnmn
(see annual volumes of the APME Red Beo) sim8~ national lopa u
fraternity (see its monthly pulcton, The Qul) E~h:1ditpdaAw4
(see its monthly pb~eation. The National Pubiser.

verst o lfori.-~.Seas Report of Adeadeent of P@I fa
Gomitee O The Quill, Dec "9p. T.






27

ment." The result was his The People's Right to Know, published In 1958, and hailed as a "manual of arms" for newspaper editor&5 The practice of news suppressilon has not been peculiar to any special type of information or limited to any particular branch of government. One California editor has commented: off-the-record statements by public officials are
becoming a growing disease in this country. Because the President of the United States holds off-the-record conferences to supply background information, deputy sherWs are doing likewise."
Two executive orders (one by President Truman and one by President
Eisenhower I have been the cause of much criticism, as have the information Policies of the Department of Defense and the tight rein on information imposed by Secretary Wilson's directive of March 29, 1955, which permitted release only of material that would "constitute a constructive contribution to the primary mission ofthe Department of Defense." '2 Numerous other governmental Information policies have been strongly protested."
The 11keedom of information" campaign reached something a climax late In 1965 when.. a special House subcommittee under the chairmanship of Representative John V. Moss of California opened hearings on governm information
practices.. The subcommittee, said Representative Moss, "will not be conducting an invealUgiLtion but, rather, willbe studying a vital problem." As preparation for Its task the group In August, 1955, sent a questionnaire to all federal executive and independept agencies.15 Among other things,. the replies revealed some 30 new classilications 11 that had been devised, to keep information unrelated to security from being disclosed and apparently to circumvent the Presidential order which had limited classilication of information to three defined categories, 'tops ret,1
ret and. 6deonildential." 17 Hearings Were held November 7-10 and concentratod on the FIxecutive branch. A second set of hearings was conducted in January, 1956, centered on the regulatory ag6ncies. Witnesses for the Civil Service
= FnAWan particularly drew heavy fire. Thecommission had replied to the sub
ttee 4i stionnaire thusly: "The authority of the Commission to deny access toor to furnish information from its records and 'files-is based on the inherent power of the executive branch of the. Government derived from the Constitution .... Both Commissioner Young and the agency's acting general counsel

Crops, The IV els Right to Know Xv (1958).
soit I "cu. Supp. No. 1 (1951). For an Illustration of the use of Cross' book
to.g oader access to public information see Romm. OPenimg Up the Ofty Hall, Nieman
946'Ab" Jan. 1954,
*,T.he Publishers, lux:111ary. Feb. 16,1952, p., 1,
30 Exec. oriter. No. .10290, 16 FED. REG. 97!D5 (195 1).
11 EX6e. ()rder Jqo. 10501, 18 13VD. REG. 7049 (1953). "We have found news somewhat harder to dig out u der the present administration," W.: U Beale,'Jr. chief of Washington bat*aw Asiociated Frees, quoted in Raymond, The, People's Right, to know 48 (195%mes,
V RAWrIated In 101.Cong. Ree. 11325. (dajl ed. AAng. 3 1955). See also New York March'31 l9ors ]v 7, 1955, P. 15; Ap: I
1 10; April 19,1955, pp. 1, 11; Time Magazine,
8-79,, and Henkiu, "Pentagon NewsPolldes Ir
May k U.S. Press," I.P.L
R t (Intern&& nal Press Institute Zurich), Aug. 1955, p. 1. TReselnelude activities of the bkce of Strategic information In the Commerce Departnt; t4e Qoipm#rce 1). wrtntWls control. of the export- of technical data: an "excessive" n% ber, 'of wrox, In e g by congressional commtttees; and InformAtion policies of t4e A,4o;nIc 1 reports'of the ASNE subcommittee on Atomic
IX41wma 11W, bLEMS OP'JOURNALISM 1952 grbd 1958 and an article by its
t14filT t ko' AV, h ot Ai6
an, oe mic.georeoy, HarpOr'sWagazine, Aug. 1959, P. 31. For
9 ;0 Iscuwfoik b ofttlbn of public Inforniatift probloms pmd. restrft!tions see
at' ement bj,*Wffin ae tws before t7w 8 b mmittee, an Re"a*j zatiolt of t1w
Somfe Oommittee ", Gqvermnent. Operatimi, 844 ng-, lot Rego, 682-701 1955).
This 'Otatement also ap, in ASNE Piaoinmws 6ir jOURNAL183 pp. 272-79. One
orlhq $el rely Cr f, adnftfstft on policiem biti been the Nj;nTower6t6-Wjbon
leftii of 4a; 1054 loaned durft. thOO -MeCaftby heatInget, described bv e
nhvigmay 4,o 11t1W j;;ifeR threat"to freedbM of the press' In'Lour Owe." Monenhoff,
-Ti,1hfr'Prb*8 41erf to a DaAgero;us Pfteddelnt, On Effleoutive Pecreov ? The,, Quill, Dee. 1955,
W. see o5b 3wolleidbat'A Awedet 14 Meman Reports Jan. 1956
p., J.8.. I'Ne ver has, 0 b d 0 hold been a
0 f Tet,= 0 rA Rt sseRall Cross,
4 iher Moo 1;T 1.9'j, 0W."11,12
N_0._,Aicc-',A6H3 (,daily 160L' Xus- 20
;,%Ttblt onudire and f teir, r#p1l.
The tfrqNte #t-sti le,"d Vom, tO W_ nete% along
W" A bO'bban issued as pe, ript, 9pne8 from
Age. fpo
to, Jou %oh;t;%oird 01 Goverts"Wnt
qperatjona 84th
o* fieveron Ong.
9"MRA"'01 Ist Sess.
2s
eiin blii-iitoj -AAnilitstriitive use on distribu#on,", "for staff xise
"administratively coufidential," ete.
17 Exec. Order No. 10501, 18 F ED. REG. 70,49.,(1953).
18 rapt, AP; 49 t Owulmaies's*bMated: 'the' Special. Rtibpvinthe wonae Oom*Mee on YOVPl SWNrff&%V1VV T.PF07aftone, 84th Cong., ist Sees. 83 (1955).







V"
defended comg-*k9i xulWO that !94 Ikept se orM=
ANwh isf tion as tbe nameg
of eligible candidates for postma. kppoln its. They r taiftedimch an.
civil ii W. 1 .. L
thority was. 'Uhwe4t"JA the' 4 1,0406
resentatlve x6io., amazemento that 'Coitehdod.
.1 x SOM*49"&4
they had an "Inherent powAr"to ke*OhitOrMatift from the Pubftc 6 seTI 'it
as a. new. Once t Of %Wf""* Otacials of the AMO hssM edl at
tW answered. all. 11 reuo,=,ir re"eft tor nftftktio& They 'inwate, it' e*er, that they alone had the right to. jud 6 Whit *as,641v&sdOabj CO, f of the J hearing,. the were indicatiOT d take,:
Oommi" would 'ktlok to rft%.
ommend changes in le Zral "tutes. 711, Servlee ComudW6n h*g revised
public into on reffulatio
Cross found the r1ght 6f InVecUon '04 tlie1ederal level to be' a ljrare exceod., in contradistinegin frOmthe law at state and Muinlelp4l. _Ievia* wlibre of inspection is e d 96xieral rule." Me found there was no enfo* eab% legal right to general inspection of federal ) lim-jwdiii2W'. r6doiLni,1% the 'ivollabIlity, #jereof being a matter of offici4l grace, PAO pr discretibn.10 Ckdi* d
pr law for 35 yeW s thputen viterftjgAAe1r=1, -eact4ced newspaper ft of 1
fuma of access to public records axia. ""NoW." he ebimM#nted iViA951t
I'sca=ely a week goes by without a Aew refumL The last live years .. brOAht wore newspaper lawsuits to o In 4
pen records thau 1, any revl tw tw0i* ft* ytftrer'" It is difficult to con; celve of any'branch of the law that''does not rn dre bequent examination of such public documents as police* tecords vitil, stabdes!' tax assmsments, motor vqMcle records and various oMier. w''k-telftle to wh1e+ newspaper o ons have been *eking the r1kht oraccess. As Jwdl6e Potet
has pointed out:
"The information stored In public records, Ich Me ne, wants to
Inspect. for p4pssibl.e publication mAy be the same Information wMch I the lawyer desires to inspect for possible use in a trial, In the pr6paration of 10gat do"entat or in the myriad of functions he performs for clients."
The complexities ind 'bigness of government alone make
difficult for the newsman to dif out- Information, especially infb'attft, the puMe official is reluctant to disclose. A13 an badicatiou, of :the bleml iaeb* the edltDr in his quest for "all the news thaVs fit to print,"' in San Francftm: aloM there are some 200 federal agencyomces.
The (London) Economist thus pictured a British- senior civil servwnt If, he had attended. opening sessions of. the Moss subcommittee liparhw: he
would have returnedto Whitehall t I hiankfully, like an qxplorer ew*ped fmM the Mario head-hunters."' The observations of the Boonomist illustrate 0040Y basic differences in the United States and Ungland, as to:Mere1Atkw&iP betwam public officials and the Pres% as well as diffejre in ",to O..tj*cotMPOr6iY press. ODminented the Bbanaws&t;
"Nobody ventured to suggeNt'that theme Self-elected.guardtww oUthe pubHe interest were -already getting more information fr=,'80 nt S
than were the newspapermen of any other countryin the world. NdW* met4ously
29 New York Times
so Bditer & Pubitsfier, Nov. 19, k. p. I& "We an &waged to leaft ihit JohiL B. Mato is dawats"t t1kat some goverument asencift b, t1key ha. 4A ent' to cojati i faft- Ib )ervert" notion tuLt or
can = what item of" 'Mm'-w=url frormatiqu should be relowd to A
been the root cause of amm =Am n at'an levels of verubmat ft bask reason *w the Item Co ttee 1haverdagon." VLF& PabBiber, 1
at New York Time& Nov. 9,1955 P. 39. 4ARew'rMt
0 Editor & Publishert 28.)555, P. 46 0 P6 In Its
onaninir heiuliNp the eomadttee "took a sfaift a the or the dki^_-TCOMMUM04 on& A" tOW&rd 09
;U o ti between. lrederaUkm an the ub Le.
AMt4**--G 64"t as Jr, Bulletin or the ABNX W to 1 tor A
Publisher, Nov. Al And Nov. 19, 1165, IL 13; an% Olt
'415bo rMatl6ft
OL U by %be
See Crom The Pao tel's t to W 99 19n
Oncludin five "legal Noetrines") held responsible r e 6 0 6, W." In aserpaorg chapters w1th I Y. SwAT. 1101 U875). 6 V. i U istrative Procedlure
former as beving be=
that "efled a4ud fu --pow.
as far as mamng ftw & in c"oneern %--dn jam
Im Quoted In Pom. VAw Mopross6m some. A OBotein.Book'Revtew W11AzY.LAV1v.9W (1960411
Ban Franelaeo Chro;!Oe, Tnly 8, 1955, 0. S.
27 The Economist (Loondou I No W A=.
It IM. But am GiMtk, Alle O#W IYOMS WWI, is j6dera I& Rq taw"MISO, howW











channged thepropsover-ealou ws paoon of d nesme u todnyte
White tht goelimed byical soedi Ioselten ofinqsvenes papermeu~~ bprsofieswof suld ispestvrIformation take manart mentcbkf t~a ftgvthe isn oohre-tfor denthst oaroatn
fatrti the begmn andine laeleta allad Even w Unt caesorshe isrue ton cvryn cocpt afd"feedo
idaisi adsmte ompxte s ofgvrmnanfa powers~~~t hfsprsincaverued thsoe public's ntereffinlAcrigt h chargs, thsuppesso tha suit isomehiow tksere man, fomntm from ariou moties.aTere eIts t reduc he aoreascsso of ts.n position~~ pI httebrve tore upoted rnecsary ioneer ofiiash have a1*s~ onte tona probldgem." aditecmericanaOity fteAeia
an topeetebrasmbetadepes" rdi~ots Th~~~~n reI'vdec htthe marext-pes of opnin.'l afs anhcniu lngrls o th cod a nae ewspaer 44torpbcs temeves in tulcifomto andstrengthveei some idaata scrtins neo taenvd stfecrc.Teifot in M ,ntyeasof ewsastontost rdc teae of publicte information s dr Say oe osever "ay rel, th e stuatinecesray preewTkfmnwt real~~ ~o demn fa rventorati procm. 'ees.nCvi ibris no

publised atudy n mbythe sujcnxriveade "rsnpolicern epasovrne agecie wee narowi the fr -ple eod Thiio." wa Buhr1hsbe litleenealoncrnan cntesaer ofteiforni Nmslwsipah pinofsm
of teir poksmen hae oe nstPand notten seedoentItrstih pioblem~~~m If thessupprsspons li norngileislatiaonat n rap ant"asme oserrm caion ofe aslegitimateertine rest h rvtra

toth poprfinelignishaetories pofctins.adpro
Irt Tnd Petro nA MPITURDEDUA
In te wnterof 95ethiersade crmmTe Four Theornek httw rn during rrets hd bentaod Univest ibaryd Divion ofatenteeot Freedom o Infr king, Frmiteeo of the Paifress (1947).PblahrsAs d~ioa (ereuatt rfInes tad the cNan beovie within fiscaeoal legednewssupprsse." Sines the APME Rd BoFeok 1954 p.omtincm Mttte-ha beenactieinywher fed, sosig thesloodon rheto gngnue ,00a.-com uo thtiforequeonto ad soleroiouse antrest the pwabin ome.W&0 A the 95>jectstatoe ssomties imeled t cestopbi
discus0"of dry ditnu slenhoes wa frno s the deuroe of mas edae, 1~~~~ ~~ 1., 1950 p.usb 7. "Moderatieton Xzin myD opin ion 1 3( er d
V. Whed g~ucr InSaiod th ni vneylicay caDigiin makimuictin n Jour SY;and Hockn, Nrov. 1, 1954 Pres 3, 946)
W. teopled nto 95p. 190,is and i Wiggnhs .es theakowth
%, ube Du li Ibus letheecnb owthin of the AaNE, Oct.t 1,194hp.9 ei a o G"Vscbe. Iadevic e o M conea ign orac andZ error uto "Ia begi~nin to wuda hethrt Loy tal andSince 50 (1950). san frXttia 4el N-reitletospr onclues Sohat Ithe fbnae of peo ri aneor bu 1-~ ~ ~ ~ ~~tp an idPEA ra ofeunters tod tentions ere th n eet fdtr
t m on. th e ra rub e portht on te subjmet e se el ed Bteeu aNaht

*R~e16Bdlt1 o ha elt Chi. commite, The Qull De6.95

Im Raymond, The iWl' Right to Know (unp(bahed)m
".14,~~~~ a3.TiACUrprots sc iles ofa the ali foa PbIn eea gnist W~fmafton opaer PuIhers Aoi ation w.nersowpatsnw,







information were passed, b4th ac~tivel upre yteCP n h aa

as Government'(Code etos5%7Madmks oe ulcmeig o
visions for all local govenetlaece.5Teatde o pl o01e gh
appy o egislative bodies of chartere fis'Ct stones &atrcte had previously held both ways ontesujc. Governor Warren objected to the bofailur to cover stt omt ing. a
"There isn't any reson at all. whv a lwfrlcl "nnn
and then refuse to have the same thin fr State government. 11proal e





thee itgwouldpe a goo thbeiev t a g a -lawfr all brnhese gveranpent, paslueinecthve legislature. Som othe wsors things tatav hapeengv erment tst entlmned frmscey suld e awo."' The secnd 2,roposal.as Aembly ill 116D.lee Inrdcdb.Pa aklo San Degasm autg of eual by ont healt autoiist lo ha annonounenh grod wouldn Tribue, acs to tr ors.Thbill topoe to the ecnatte Gvirnee n byd,, reporting ofe refusal ofr egisltme eoperyeceds attepttintont wheeer to laiscall g(""Tebl recd f cutee
*cket gveato yGvro arn h eerdt ta cte n smrl
* stmento oicy th9at lurdd change exstK a.Tegvro adh


phera15se atreuo imleete by positivlaw." A7u Onliay Ju rt 2, 13 Senatrmu Gerg Mile intoue eslto ocraease cialns Senate inetiaing ommite 0nGvrmna ra~tos'H ae




city to nEu gs.'

fro May 25l~~ oc ofe4,152 o aret 1 fhaig'nAsml M39i etm Ve 195e te or~essepor o the L-.atreofy A~o~sseby-neh oamt~,o


missits, ors CStauq o any ffla art Ia 3-3(93.Pr-nacuto h andalabe togh tohKow puWuv'p*beeiohdmse' hssI Uiest fClf Uberarvterkly to73) ...
0 7 es Calrnia Gujse.1(o 5/0 iegahd 9l ,15) odn n

byrem~ited toitizes maristradfrhr.t *ret emi tetulesrjetd* inso oa eiltv oisi ia otepeevtion of a nomellcortln ctito e aneeenaewdmodmortcgoenet h xitneofdvo loohesosutrue =euatnto'aiciorcat tepbi. ti fi




; ~~i! i!! ii L !i L! !~i'iiiii,, 3. ..1
I n January, 1W,! th eo mte pond!i fou quest 'ion to I sme 66i stt a g en-i'!
c l e s a n d b o a r d s. ..............................................................

"'I.iiiili' ........ recordsi~i~iiiiii ini th epigo yu ffc reb awcnidnilPes

funs ciain fori, suchi decsins
....... ........................................ o t e ............. iniiiii y o u ......y u o si e s o b i g o p n t







to thei~~i public?
The~ ~ ~~~~~~~~~~~~~; reasons aln ihoiin f h tonygnrl n h eiltv
cone oniiiiiiiiiiiiiiii th ujcwr ulihdb h o mte i a,16.Te1
page~ reotcnan h ulrpisrcie rmec gny oehrwt
such xhibts a wer present& Thecommtteeheldhearigs I Novmber1955
an SnaorWilr asmi ohr eains oldbecodutd urng19 i
th xetaintatlgsato ol b eo meddt te15 ssin1
............. ........... of, the coe of California......... reat to. pulc eodsad hi
inspection.~ ~ ~ ~ ~ ~ ~ ~ ~ ~~iiiii Tw etos eiepblcwiig.'Ohr roieta ctzn r



...................................................... in s e c io.................tfi d o p e s o f p u li w i ii iii."i
These deiiiiiinitionsof "public writings" extend well beyond the general common lawii~i~iiiiiiiiiiiiiiii~i~ definitions." The "stark brevity" of the California definitions has left wide scopei~i~i~iiiiiiii~iiiiiii~i~i for. Judielal Interpretations.' but actually there have been few cases bearing oniiiiiii~i~iiiiiiiiiiiiii

the~iiii sftte o temstpr toeththaebendcde ae ue mrl
r a p a r tic u la r r e e o t d fa lls w ith in th e p r o v is io n s o f th e st a tu te s a n d d o n ot
la nyboa enrlrue ta cnb flowd Gnral heeisn snl
teat th at m a iibiiiiiii ap l e to d etiiiiieiiiiiirm i h atiii coi nstitu tesii a iii pu blic reciiiior iiiiii iiiiiiii iiiiiiidii i ii i iiiii iiiiiii i iiiiiiii i ii ii iiiii ii iiiiiiiiiiiiiiii i ii iiiiiiii ii iii iiiiii ii ivh e i iiiiiiiiiiliiii iiiiiii
onlyi liian guage of i g ieneraliiiiiiii applicability in th e var .............................................................iiiiiiiiiiiiiiiiii
................ of PU b:::::::::::::::::::::e W orks w- to the effect that "'the only means of deciding::::::::::::::::::::::::::::: = ii~iiii~~iiiiiii~~~iiiiiiiiiiiiiiiiii iiiii
w h e th e r o r n ot a d o cu m en t is a p u b lic w r itin g is b y d e te r m in in g w h e th er o r n ot
iI t iiiiiiiiiiiiiiii iiiiiiiiiiiill s w i t h i n t h e s t a t u t o r y d e fi n i t i o n I







to inaets elaae te mneaantmn;tee aaa .ade
considential by law should be exepted from pable viwI,
,"Te people of this Statasd not yieta theIr to h Vthich
serve then. Tige people, in thirl demaigate ot q. pebl
servants the right to decide what Is good for the people to knowiand go goedsforthem.to know. The people inalat on, rm int omeno that they nar retain control over the instruments they have erested And- to Assembly Bill 100, the larlalatap e. dealer asIts "Inent" that: manl offical records, reports, or other official anuentW" abould be available to. ths public fer inspection, "ercept as.otherisae provided bgr law."."
The phrase "aad other matters" in Poliial Code section ,1=7 "weald ee
to imply tMat the legislature intended to extend the right of inspection to ab)re than just "pubic records.'! And the coasts have been "Rhberal"' in their Interpre tation of the phrase "other matter&." In Msket v.we arimenit ..f Publio Sevc8 it was held that the papers of. a mank~pal, utility
were not, strictlyy speaking public- records," -but access was., granted on the ground they were "other matters" of a general. public concern. In GoldeB r. Board of Pbbie Works 61 the court held. that a private personW the right to inspect the prelimiary estimates and,plans prepared ia the of the city englaeer of the City and Conty of Ban Franalso, in eannecdtion the Betah-Hataby project,-spren though the documents were memorauda propared for use in the oflie sed had not been formally adopted as9 the eikelacts of the englneer. Inspection was granted on the bate they were "other, matters"' in which the '"whole public" had an Interest. In both cases the petitioner gained access to documents sought and both reflect a, liberal polat of view in rspect to the pubies right of Inspetion."
In reaeliag its cdnclusion in Afeaet v. Department of Publio Service that the documents "strictly apealdag" were not public writiage, the court adopted a policy of consolidating the statutes, resultlag In a restrictive deni.a WOf "pable writiags. Accrdn torsectlin 1888 of the Code et Givil Procedure public writings are the "wrttenaets or records at the- acts" of publie bodies or offetal&. Section 1894 then divides public writings into four classes: "law, judiliaal records, other officlal documents, and public reeods kgpta tble statp at pirate, writIngs." Consolidating the language of the two'sthtutes, the court held In the Meaket ease that papers in question auat not only be "off1clal documents" bt mast also be the "written acts or records ot the gets" of publie o~etals or bodies." In other words, It is not enough that they' be watten acts or records 'af acts or offcilidocumentq--ther appst eofA.
Thi "doctrine of excluiton" has been catenfir appled by the attorger general In opinions rendered for various state agencies." And the water committee survey shows thbite opideons have been widely arel on by many gg t ee other than those for whome they -were pre a Ila not difficlt to sa a hs
rdCosier :,Instructions by tegvror in a letter by isdepa-wna secre tary to all ne et heads: "'[Th Goenr {has] Instructal tne to ntftieDelpatment of PulcHalth that any rwas, it prepares shulhe made allbeto Vhe
Pres nles heist a specific prohibition In la against. *This may be Winas 1o1la7 by lldeprtmnts" Letter from M. F. Small, cearmetal Secretary to, All Iepartent Head, Jn. 7 192, In Ps9No Records Bwev supra note 47 at 140. The Controllar replied to teMiller committee Inquiry : "Unless made confdential by law, we record aB ecords ib thea utf this o as being open to pubie Inspection" rd. at TT.
58This was the which renetred a pocket veto by Governor Warren. See note 42 espra. 9 ction122 provides : 1"Ihe public records and other atters In the oftee of say offean xep s otherwise provIded, are at all times during offee 3gours open to inspee* tion of ancize of this state." (Emphasis added.) IN 35CSp,60 170 Pass 058 (191st).
a 187a.50 0 Pae. 8*19 (1921).
*0 A student writer hallet the Boldesell ease thus: "This case estabitshe tAe sond rale that a cltizen or oanization of citizens may Inspect al data. concerning any actvity of the stt or muiiaiyIrrespective of their character as puble reods . . Tesection ofte Cde ii l Prcedure actionn 1892] whteh aWR p1 ub~lri wr to aeto has benmaameesrplusage by this decision. =7 overed byt W W eemuc
addtioalmatria b accessible under the Politleal .. Note, 10 C I&. Eas. 84,3748(9Q
In 35 Ca. Ap. TOXe P 6m58 (1917).
69 he docrin ofexzdhde" as expressedl Ia the lfvaet ce "has been canslaently followed by the courts and thisf office in Its deterih nekttan ht sa ht rio public or private writings." 18 Ops. Cal. Att'y Gen. 28105),S atwO Cal.
Att'r. Gen. 41 (1948), 13 Ops. (Ca1. Att'y. Gen. 180 (194) 16<$' "Ge.18






33

"doctrine" could have been conMved. Section 1894 certainly has Uttle meaning standing by ItWJ1 However, one could question whether the office of the attorney general was req**W to construe the public records statutes in the restricted manner in which It has. But conceding the attorney general felt constrained by the dicta of the AfwW and CoklweU cases to follow the Mushet "doctrine of exclusion" there appears to have been no requirement for the attorney general to have interpreted "records of the acts" so narrowly.
This is Illustrated In an opinion prepared in response to an inquiry from the County Council of San Bernardino raising the question of whether lIsta of names and addresses of students attending a public high school were "public writings" within the meaning of the statutes. The question concerned Usts of pupils maintained by school officials in preparation of reports required under the Education Code and also to serve as aids in school administration. The attorney general applying the "doctrine of excl4sion" of the Mushet case, concluded the 449 rec9rds in question are not public records . ." 65 It is significant to note that the attortey general refers to the Hats as "records." The preparation of such Hats-for whatever purpose-certainly is an act. The attorney general still could have gCpplied the Mu8het analysis and found such records to be "official documents" that were also "records of acts" and hence to be "Public writings."
Also it is to be noted that subdivision 3 of section 1894 of the Code of Civil Procedure Tefers to "other oflicial documents," which could be interpreted to imply'that the 141slature intended public writings to include more than "written aeft or-records of acts." Otherwise, why not "other official records," thus makInt, it consisteht with subdivision 2--Pjudicial records" I
the right of inspection is not an absolute or unqualified right, and even though a document is a public record.1t is not automatically open to inspection. fg cdon 1892 of the Code of Civil PTocedure provides every citizen has a right to iftipect any public writifig d4except as otherwise expressly provided by statute," and: Wtion =7 of the Goveilment Code: permits inspection of public records and other matters "except as otherwise provided." For reasons of public policy, tbe'legislature in many instances has specifically declared certain records to be a(mlidenthil or not open to inspection. Also there are particular relationships which the legislature has declared should he protected and preserved inviolate. section 18W15) of the Code of Civil Procedure provides: "A public officer cannot beexamined as to communications made to him in official confidence, when the
Ulle interest'would suffer by the disclosure."
On geveral occasions the courts have recognized section 1881 (5) as an exceWon to the public records statutes:0 Also It has been held that public policy demandM ciortAin types of communications and documents be treated as confidential 6y" though they are in the custody of a public officer and are of a public ftature In the exercise of their investigative powers, government agencies freucIntly find It necessary or convenient to solicit data that would be available only *1th the understanding It will'be kept confidential and not indiscriminately digelosed. Ufidoub edly there are situation in which it is in the pubUe interest that a public official. and the integrity of his information be protected. The statut woUldcloarly seem to place the burden an the custodian, of the records to M; ins'tfaite that "the'public interest would suffer by the disclosure," to use the wumds ofsection 1881 (16)
It appears there should be some sort of control over the public official in the exercise Cthij privilege.. but this pr ents a difficult problem. As Hocking has commeutc4, drWe say reeklesely that [readers or listeners] have a 'right to know'-- yet it Is a right.'which, they are helpless to claim, for they do not know t4#t they have aAght. to know what as yet they do not know.'ra.
-The -MMer committee survey. shows that public officials in many instances 1jave- -upsumed a good deal of authority to withhold information and that conftston '#ud Wonidstfteles exist among the various agencieA. Several of them

05 16 Ova. Cal. Att'y. Gen. 163, 164 (1950). Cross has warned newspaper editors to avoid for opinions of attorneys general. "These men b their afficial position are advocates or those very office holders whom you are ;:e;Lg to foreO to pdfmit: tUt access. The PubTJSbWs Aurniary, Feb. 16, 1954, p. 1. Flee also Editor PniblitherAprit 25; 1953, p. 106. "Optnifts of the attorney general are not of controlling authority, Wt in the I*ht of The relation of the *Mee to the general gov4rnanent, they are regarded as having a quasiJudicial character and are accorded substantial weight by the courts." 0 CaL Jbr. 2d 97, -(IM).
46 San PravabWO *,*. Sw*~ Cowt,' 88 Cal-2d 156. 238 P.24Y 581 ( 951) ; Oaldwe'u V.
Works, 187 CaL 1 510 202 Par- 879 (1921). 1
er RU*Y*ft V. Board of PwRoft Termr and ParoU# 26 Cal. App.2d 183, 7D P.2d 101 (1938).
68 Hocking, Freedom of the Press 170-71 (1947).





34

comment on-- the uncerLw=ty of the law and decWe that legislation to clarify the situation would be helpfuLl Some 9genclesrej tbeInformatioix submitted
Upn to be conn
in application for a license and the grades made in an eiiaminl dentiaL" Others do not' The Structural Pest Control Ooakd takes the position that since sections of the Structural Pest Obutrbl -Act: ll#t certain documents as public records,,. "it would. therefore, foll6w,'that. Mom not, named would be confidOntial"' The Miller committee survey, further noted:'
"While the newspapermem, because they are ex pected by the public to report on public affairs,'encounter many difficulties JA carrying out this theirs
is not nearly so difficult as is the lot of the individual taxpayer. For newspapermen, wise in the ways of obtaining facts, usually manage to ferret out the information they seek despite the obstacles encountered."
But the public's right to informatif)n about public affairs should not be based on such a haphazard, illogical process. It should not be left to official. gracA indulgence or discretion. Public policy calls for some speedy objective process by which denials of access may be tested by legal standards clearer and'more uniform than now exist. The right should be subject only to those limitations that are clearly and urgently in the public interest." The determination of -just where this public interest lies is, in practice, a difficult problem ., Newspaper editors themselves are not in agreement-75
The argument is made that the public interest is beat served "if ideas can be fully and freely exchanged." Obviously it is not in the public interest that every piece of correspondence of every public official be open to Indiscrimi inspection. But in a democratic society that public should be entitled to know the considerations involved in public affairs decisions, as.well as the result-s-.21
Naturally. no reasonable person wants access to information that legitimately should be concealed in the interest of national security and defense, and would not claim right of inspection of records pertaining to state secrets, diplomatic communications, co military matters, and the like. Also, it is recognized
there are cases in which public policy demands that certain proceedings and papers be kept from public view-ranging, for example, from some personnel records to deliberations of the Supreme Court., Should the public be told all (the position of the overzealous 'Wot to know" advocates), or what some person in authority think is wise or sufficient for them to know (the position of officials who claim an inherent power to suppress) ? The answer, of course, is some place in between. Such decisions should be by legislative determination and not left loosely to the custodian of the records.
Absolutes are neither desirable nor attainable, and, Cross points out, no perfect law is to be expected." The situation in California Is considerably better than that found on the federal level and in many states. But still, on the basis of. existing cases and opitnions of the attorney general, one Is unable to determine with any degree of certainty what are public records and what are not. In any 11tighV' cases that might now arise, California statutes as presently Interpreted do not appear to give adequate recognition to the importance of the market-PUM

40 E g The Department of Public Works states: "Pammw of legislation to remove thin lance;ignty f as to the confidentiality of matters Involved In prospective or winflng lttlgation] would be highly desirable." PuIbUc Record Survey, &wpm note 47 at 1-st''
70 E.g., Board of Optometry, id. at 127, and Board of Architectural Bza miners,4d. at 117. 12 Mg., Board of Medical Examiners, id. at 125. 72 Id. at 128. The Board of Chiropractic Examiners takes a similar view, 4L at IM 78 PubUc Records HurveV, mpra note 47 at 7. "Newspapers g ne thOUA with
numerous exceptions, enJoy more and better access to these sourees f n e nwvms ly moans of the sugar of voluntary processes than they could hope to get by the vinegar of eompubAon under the present state of the law." Cross, The People's Right To Know 5 (1953).
74 "It Is not enough merely to recognize the Important political Justlikeation.for freeoni the legal rtght
dom of Information. Citizens of a iqelf-governinx society m st W F. I I to examine and Investigate the conduct of Its affairs, sub= I to th Imposed by the cost urgent public necessity. This right must be elevated to a position of higbest sanctity If It to to constitute an effective bulwark against tmresponsive leadersbin." Note, AcceR8 to OPU*a Information: a NeglWed (YoneffftHomW JHght, 27 11m L.T. 209.212 (1952).
See differing points or view expressed by Mathews, Newton and Wiggins. 'Mow Boot to Figbt 00clal Secrecy," Bulletin of the ASNE. Nov. 1. 1954, P. S.
70 Peterson. The Legiobftree and the Press, 27 State Government 223 (,Nov. 1954) "T60 often the members of the press assume that public servants. an. a group, are not entitled to confldenee with respect to their conscientious endeavor to discharge their datim honorably." Id. at 224.
77 But cf., "Onlv documents which present ultimate actions: should be ateessIblo to the public. Those which are =eg part of the n*11minazy stem by wbUft the ftnelumbs was rPRebed should beet p blic only In he discretion of iMe Particular asesey." Fankwich. Book Review. 48 Nw. U.1L Rev. 527.590 (1953).
Cross, In Bulletin of the ASNE, March 1, 1955, pp. 91 10.






35

of public opinlon in a free society. As Macaulay said, nothing could be
ol-e Irratlon4tl than to give power and not give the knowledge without which
there Is the greatest risk that power will be abused."
The degree of confusion and inconsistency evidenced by agency responses to
the Miller committee alone indicates clearly the need for legislative action. There Is obvious need for a new and more positive law. One approach might be to declare everything, in effect, to be a public writing and open to inspection, unless expressly excepted by statute.* This would require a careful study to det#xmlne Just what specific documents the legislature desired to declare by law to be confidential. In instances in which the legislature in the past has desired that government documents be withheld from public inspection because of the nature of the records, the legislature has known how to legislate to that end; in
fact it has done on at least twenty-four occasions."'
It In true such procedure may result in oversights and omissions, producing
occasional "hard" cases for the courts. But that is the lesser evil than a continued tendency to narrow the Information available to the citizen concerning the operation of his government.
Mr. CiamEs. Mr. President, the Florida Sunshine Act had a tortuous
history. It was introduced in every regular session of the Florida Legislature from 1961 until its passage 6 years later. Five other States
Arkansas Indiana Nebraska New Jersey, New Mexico-enacted open-meeting measures while the Florida law was being debated. State legislators and the Florida media shared a concern over increasing closed meetings and behind-the-scenes government combined to. alert Floridians to the dangers of secret government. In writing of the Florida, law, one commentator said about the origins of this new public
concern:
The increased demands for open government in the United States since World
War 11 Peem to have had no specific origin, but an aversion to undue centralization and- irresponsible government revealed itself in such political issues as reapportiorment, and home rule. The emergence of an affluent and better educated society whose attention focused on sophisticated issues strengthened the dem.-ands for political responsibility. The increased impact of mass media on society played mimportant role in directing public attention to inadequacies and abuses of government. Whatever its source, the public's, urge to participate more fully
In legislative decisions was evident..
'The form necessary foi7 the passage of a sunshine law in Florida
F
finally cametogether in 1967. The law is brief and simple, saying that all Tn eating of governmental bodies are open to the public at all times.
No resolutions or actions of such bodies are binding unless they are made at such an.. open meeting. Minutes of such meetings are to be record6d and open to public inspection, and violators of the act are
charged with a misdemeanor and specified penalties.
Experience under the sunshine law has shown that the open meeting prmcipl does not hamper public business operations and. increases publicconfidence-in go*ernment. T functioned under Florida's law for 3 years -in the Senate aynd became totally convinced that the lawmaking process was not inhibited or damaged. Closed doors are not necessary
to sound resolution of conflicting views and interests.
70.4 MACAULBY, HISTORY OP ENGLAND 429 (Harper ed. 1879).
80 The present statutory definition' of "public writings". could be Interpreted to do this.
Public writingsare "written acts or records of the acts" of:o1ftck1 bodies or public officers Vroc. 1, 1888). Is not a- letter a -wri act 6r record or the actl --the act of c#M1*ftieat1n g? See T.a. Rev. Stat. 44:1 (1950) for & broad, general definition of
pub" records.
ntl Lt dsMtlve Counsel No. 110, JU 21, 1668', In Public Records Survey,
ofspra'.'note 47 -at IT went*-four s atutes declaring documents eonfidential.
general the statutes declaring certain documents confidential are Indexed only by
the subJect mattef. Consequently, a complete list of such statutes cannot be prepared witbout R careful examination of all the laws of the State." Ibid. A survey of New Jersey statutea discloses sixty-seven known statutes that classify certain documents as "public records" and/or "records open to public Inspection."' Young. Public Records In New
Jersey (Rutgers University Press Research Survey Study No. 9, 1955).










ing aeo 90TerNdiomt~t


inwe a numberulfecisions that th& dusii awsoe- r ap
mto is meng to eact, wit th ufs&sbsnes o

Su reme Cur of Gr lr, inBot Pbialm"trc-h St
Doran 1969 the e Uiemta ofe Penire I~1kp decsio maigDoes~fg


consent that the report be pr~inte~d in teRecod
There beingf no objection, the report Was ordered to beprited in~to
Recrdas olows:
Ax ANNO~TTED BiisToRT or Pw4QtDA' Suq N LAW
(By Robert .Geneg

TE BEGINNINGS
On April 129 19~61, Senator Curf flerrett of MiiI introdced abill toba secret m~eetinigs by gvernimental agencies.' It heralded FloridM6frs tt e~p to replace "mnolehil government" with 4'governnt-Ih te A Herrell's bill carried no penalties for officials who conducted public bsns in private." The proposed law provided that "no administrative~ body~ of the state, a county, district or city shll~ hold meizgwhc reodt,public."' The prohibition applied to informal. gatherns as well wsftilI official business was the subject of themetn.M dgscefe Vtfcfl dential Investigatios, mei exmnations, unsubstantiated hkg#airspe-. sonnel, land acq~dsitions wheree~mature disclosrewol ntaepesad state secrets would be exemapt.
A smair proposal by eao .EoyCos f ansil fet~ f
penalty for violation of the open mneetinigreuemn.$1*sa :bil hf
introduced In 1967, eventually became 5286-011, Florida Sttt% rte O erumpent-in-the-un hine Law." After its introduction in 191 the ise ie.,i cobnitltee. The same fate awaited it -for, fiv moeears. enwsarebacterized: the vote as wise craekikg, laugig. a tldffdk 1 the people public meeting.8
,.tate Attorne Geeral Richiard W.- Ervin favor'ed anaae onbh~, the proposed lislatio. It was hs hopetoceesmsrtf hirpte to p~rovide a rule of conduct whditecbnt mo omsojgaAsi6 agencies could follow.* "I believe this bRI would create mre vfncIngm erment."" Though private mengar"mrexdiouEvnfltht secrecy caused more errorsi judgment than Pblic~ medus1 hr~o wbat yousayqand d is going tobe put down ~pubi~cofialariniedt
more tCanto8.7
fThe success of the~ emnbryonic Sunshine Lawr may wel haebeoi!u -jtL federal court decision requiring new electios in aeodwt #e&u *n.vt

Tampa Tribune, ApriZ 12W1L1




was amended by h 7-18. Las of lrd 17)
Tap riue My416 neSe atrwsuoe: fkyppltn atItT.

U~ AM
Ist Id







37v
reanr~nentto. baancetheurbn-rual ercntag tht hd fo s eirn

Year be tiped gaist he ore ibeal itie. Oe culdsay hatwhe RS 4'prchppes" ostconrolof he gisatue, unsines pssae ws i edbe Fortltiusly th Seate M~n wasthenenggedin adebte ver exeutie sessons an ther ause. Th meia ad ben roued wen ne fter numbr rfusd toleae oe ofthee sssins ad ws frciby eecing1



users
wo slatr th bil wa paed b th Sente nd snt o th Hose'wer





'paperarlel

"Theq~vrnmet i theSunhinebil whipedbackandfort beweentretw houss ofthe eghtureyeserda lik a omanscorety 'TheTamp'TrbunereprtedI onJun, 28 197 tht Nerasa ha eta passd a "oen ieeing bil sn~a totheFloidaproosa. "t rquied n Kpyepinboyusig pblicmony o recmmedin suc spndig tohol mat0 en Q he pbli." T~e ediawoud no foged
60 ~enmet n te unhin bll inllyemrgd foma Jin Hus Uhebomi~e, itwasinta4 wih te aditin ofthe njuctiv r ee now aal~>m
THE ]IRSTDECIION:APFEDIO







ings. as "briefing sesdons," "con-ferenees," or 1%ackgr*anders.*'!* The pablie4and press were neither aw&Te of the times of these, sesidma-mor: Ver Atted to be p re
Judge King, in granting a permanent injunction, held that there is mo such rightto hold such meetings under the Sunshine Statute. "The legislature did met exclude, by subject, certain matters which oDuld be discuawd In private. It to the prerogative of the legislature to specify those matters which must be considered as public meetings and if they so elect, specify those matters which may be considered privately." 2T
Notwithstanding the murt's finding that voting did In fact take place'behlnO closed doors, -the judge felt that, "... the purpose of this opening ;neeting statut. would be frustrated if the entire deliberative process could e beld behind 4iosed doors only to emerge in public for a show of bamds."
With all the clamar that has preceded and followed the enactment Of the sunshine Law, concerning what is covered and what is, nol; Judge Kin bud no-trouble in reading the statute to effect Senator CroW'intent:
"The Inorida Legislature has mandated that the public hais the right to know without exception, when, how,, and why Its business is;'Op4ng conductedL .. Dellberations, sessions, conferences, brieftngs, expressions, discussions, 3$roposals, recommendations, actions, reports, etc. must be open to the public, for the8e'are as much offloiaZ acts as Me final vote itself. The legislative intent is clear. The collective acquisition and exchange of facts by the defendants is required to be made in public. The reasons for and against a choice of a course of action are 'official acts.' Obviously, the vote cannot be had without the prior receipt and exchange of ideas and information."' (emphasis added).
In the court's findings the trial judge mentioned, inter alla, that the plaint[A% had standing to sue.30 At this point one must speculate.. Whether the pending criminal charge entered Into the Judge's dec4sion. ftrther, -it is not made clear whether the Sunshine Y-aw will be deemed a valid defense in the instant case; rather, the judge enjoined the defendants from continuing the prosecution of the plaintiff reporter.
Various other newspapers2l reported Sunshine violations: In Alachua County the members of the school board met at the home of the acting chairman during the 1968 teacher cruds--themeeting held at night was termed a coffee get, together instead of a meeting. The city commissioners of Stuart, Morida.-VeM indicted and suspended by Governor Kirk for holding secret -meetings for whiel they kept no minutes, while they parceled out bonuses to two city: employees. In Alachua County In 196D the State Attorney and the State Auditor refused to divulge any information concerning the fiscal affairs of the Couft of Record, tben under investigation.
Commenting on the secret investigation of the Court of Record, the GalnewMe Sun editorialized: 10 "Our purpose for. reading such facts into the record IA. a simple one. We thin government-In-secrecy is a mistake which undeirmtafs public confidence. And we don't thin such mistakes should be repeated."
TIMMS PUErMRMVG--FMBT RE01": APPKNDrX
Times PabWhing Company v. WiUiam8," represents the lint considered opinion of a Florida Appeftte Court cons1vaing the government In the gunshine law.
The appellants, Times Publishing Company," filed a complalht:: In tho PlubMs County Court alleging that the county school board had -held various secret meetIngs during 1967 and 1968, subsequent to the enactment of the Sunshine law. At the conclusion of the testimony, the trial Judge denied prayer A* an
injunction to preclude such future activity.

Yd. The defendants contended that primarity a) land "uftitions or condemn4tions b) personnel matters ; and 0 pending litigation were diseass0d: at'. then seadens., 116te the similarity to the Herrell bill, on, note 4, supra.
Id.
28 rd. Note the similar train of thought In 071-82, mpr% noteft.
0 Id.
old. at 10.
In 0 ., Gainesville Son, edito0aL.Tanuary 26, IM.
N 222 go. 2d. 470 (2d D.C.A.
Publishers of theft PletersMATOWS-9 were Betty OrsW and Cbsibe fttdek






39

On appeal, the appellants contended that "injunctive relief is available to the luembers. of the public to enjoin and prohibit the Board of Public Instruction of Pinellas County, Florida, from holding meetings at which official acts are to be taken If the public Is to be excluded.11,0 Appellants also urged that whenever the board met "informally" or for any purposes relating to the operation of the schools and excluded the public, the board was violating the statute and should likewise be enjoined from holding such secret meetings.
The court found, as a matter of law, that since the act relates to all
weetings ... at which official acts are to be taken. it is obvious the legislature intended to extend application of the "open meeting', concept so as to bind every board or commission of the state, or of any county Or political subdivision over which It has dominion or control-n
The Court felt that the Government in the Sunshine lAw was a "declaration of public policy, the frustration of which constituted,, irreparable injury to the public interest.27To effectuate this policy, it was the entire decWonmaking prooe,&R that the, legislature intended to affect -by the enactment of the statute. "Every thought, as well as every affirmative act, of a Public official as it relates to and is within the scope of his official duties, is a matter Of PUMC cOncern." as Every step in the process culminating in a decision, is an indispensable requisite to "formal action"; It therefore 'follows that each such step constitutes an "Official act;. an indispensable requisite to "formal action," within the meaning of the act.
In interpreting the intent of the legislature, the Court came to the conclusion that "official acts" cannot be limited to "formal action." The formal act of voting on an.issue, or the formal execution of an official document, easily ascertainable from the record, encompassed only a fraction of the real need for the act's creation. "It is how and why the officials decided to so act which interests the
40 4t
public. the legislature could only have meant to include therein the
act8 of deliberation, discus8ion, and deciding occurring prior and leading up to the affimative "formal action" which renders official the final decisions of the governing libdies.11
The Court then went on to deal with the questions of exceptions to the open meeting mandate of the act; specifically, where personnel matters were involved.
As a matter of law the court held that, "'any rights or privileges (here personnel matters) ., third parties might have must be found elsewhere, and the agencies, etc. governed by the su nshine law could not rely on the rights and privileges of these third parties to disregard and circumvent the provisions of the act.42
In keeping with the notion that personnel matters were not legally protected, the..Court left open the door for future "real" privileges. "The attorney-client relationship is a unique one under the law. Within this relationship both the attornev and the client enjoy rights and privileges independent of each other Clearly, the areaof the attorney-client relationship which is excepted from the with the ethical obligations of the profess statute is thatwhich would confilet ion
"it is our conclusion. therefore, that the legislature is fully aware of its constit-ational limitations and did not intend to place attorneys in a position of having np alterngtive but to violate the Canons of Ethics."" All other consultations beMeen the public agency and Its counsel are precluded, "since the public has waived any privilege. of confidentiality ft may have by virtue of such
1146
relationship.

3514. at 472. Compare these contentions with the allegations In the complaint B sttpra. See allo, pellant's brief at 10.
222 ft 2d 47& The Court then referred to W&UftV v. Caritom 190 FL 97, 147 go. 236 (1938) where "offictal &W1 was defined an: Isany act done by the o1nm in his oMda ca.pacity under color and by virtue of his *Me&"
IN 222 Be. 2d at 473.
38 Id. Soo aUo, appellanift brief at 254L
39 rd.
0 M.- at 4MRat oec, -Rae"t* v. Braddock, isfra. 4214. The Court stated that the public interest may not be served by closed door per90;Mel hearlnps., "Thepublie has chosen to deny any privilege or discretion in appellee alid similar governmental bodies to conduct closed meetings." 222a So. 24 at, 475. SOO JFkwift JRGr V. X088falkn 170 So. 2d 834 (Fla. 1965).
222 go. 2d at 474L
Court4ater receded bom. this, poidtion in Bagw" v. Braddook 262 So. 2d
4 5'
V








i4

rOESKN CINTZ: "XT
tnBado ulcIsrcin fBoad h nrd
1urm1or edta h ttt wssflcet f.re~& qtesadrstafoddepoest ht hgI-it olto bfte1* t sprtepeiu ae h litfs le~ iltbio av en~t inucintcrvn sc uueatvt, Inisasetedfnatsho ordat8tdta ebt V::h or
eefoanifracofrnea bhnoofcaacswrtob'ao rWr aknanatwihtm thpulcws xldd;teefethborwol hdi pn 1pbi'etnsTeAMait ftesvrlP~e'i~t hbhr eesvrlocsd4we hbad ei~ odsu nteslviik thog ofra cinwstkn4
Indtriigtathstttr aga0poieadqaegieifth






















cussing~~uaijuica capacity," coieofa osutat deal~ ~~ fall withinin thehe purview 0an
(8) he t. etesbur Ciy Cunclhaabndoed tot ond byou thexdecuiio sesion" prtl beaus oftheSupemeCout, arty bcuetoar tote Floridabers~~~~ ~ ~ ~ elirst Disrid observede gansheprcic. The adial hanes rouht y te Snshne ~w effecto thatc qua-juicia cialm~~th apliato of saido hokadibeif Two~~~~~~~~~~~~> othe eindtodruv h efcso h ewiaie tow pere The wo-prty Qopeatedthus Th hea o t best. Thwourmet atithe nun ad eenarrvedator t lastuntl al te mmres contsho boards ers~~~~~~~~ wit Judicia mebr charac-ay"yp ot a sse

:,Flerhaps~~~~~~~wa th raetcalnet h a aei h omy oftreane luring, suit for ginand ibeing iscarge pulic untly Commission ara not~~~~~~~~~ ~n ifga noters tne lettertio fcedig thete aspuve.
THE~~isusia QwhamesCA EXCEnIOt APEDIn





42

Analyzing the school board's recess to the "conference room of the Supreme court of Florida" or the "'Petit Jury room!' when the deliberations *re taking place,77 the Court held that "neither the pablic nor thi6 prift has any more: right to enter into the judicial dellbemtions of the members of a county schod board of public instruction..."
RE]VEWED NOTICE UNNEMSSAXr: AITE11= r
In Shaughneasy v. Metropolitan Dade Coanft," the Third District Court7of Appeal held that a continued matter may be diqWsed of at a later xWcUked meeting without the necessity of repeating the notice or public hearing requlremeAts of the Sunshine Law.*
The Zoning Appeals Board of Dade County, after notice and public hearln& deadlocked over whether to grant an application for &; special, use permit, aud set the matter over to a later specified dat%:aW acted thereon.without forther notice or public hearln& When the county commissioner ratified the Board's action, the appellant commenced this action.
The appellant's allegations specified that the 45oning Appeak, Board failed to abide by the provisions of the ftnshine, law, in that It tat-led to give the required public notice about the meeting whereln the second vote was to be takm
The per *uriam opinion held that "all o0cial acUon of the Board as It apoeara from this record was taken in open public meetim" and did not thus violate either the provisions of the law or those apppllate decisions interpreting the same.83 1 5 t.,
BEZNS BEY S APPENlDrX- 6
The following year the Berns case was reviewed by the Florida Suprerno d*urt, sub nom, CitV of Miami Beach v. Bern8,". The Court held onreheaiing- that where public officials meet at a time and place to avold- being wen or heard. by public to transact or agree to transact public business at. a future #me: In' a certain manner, they violate the Sunshine Law, regardless of the formality. or lack of formality the meeting takes.0
Section 165.22, Morida. 'Statutes provides In par t that:, . ...... .
All meetings of any city or town council oro'bo4rd of alderman of an 4ti, or town ... shall be held open to the public (innphasls added).
In Purk v. Richard," a 1950 case, the Court held that the open mes"" 11L
quirement. only applied when a municipal council was assembled in a foiria i session attendedbly a quorum.
rMe crux of the CourVo rationale in the BemB cm, prohibiting any. ="ting whether or not a quorum is- preient, rested on the language, the Walat-Ore, chose not to follow when dmfting section, 286.011, Florlda Statutes (1) tthe intent of the Legislature had been to include only formaJ a8somblages for the transaction of official business," 8' it would not have beennecessary to 111nc1Vcjq a provision declaring certain meetings as publid meetin"o ft
The Court opined that In enacting this piece of 4L 6ueral.. VW
19-1ftjLj94L4W%&W,": re. Mn
of the law applicable to open meetings of pubUc agencies" was ed.
fore, In such a situation, whether or not thlaright to attend mee at common-law, or whether or not the two statutes ire harmonirAA, "VV6 are

Id. It Is this wording that lends credence to the' belief that the decision b limited to school boards dealing with students Bassett, infra, broadened the Interpretation in this reporter's opinion. I feel that the ;Wurts are carvtng, out portions of a schobi board's activities because of the delicate nature of their work and the Potential hik= fteing Florida's young, impressionable school children.
"298 So. 2d 466 Ord D.C.A. Fla. 1970)0 rahearftV d@nW ftpt 30 1970, 00 The lirst vote resulted In a 2-2 deadlock, and the second Qte, in oj; W heai 6
the applicatiott 2-0 the balance of the quorum abrw_ ning In a e 1B
rules. in accord w1a its own rules and general Prindples of administrative law, the 13oaA Pontinued the matter without further notice or public hearing. See, 2 Am. Tour. 2d, Admin. Law 1862.
01238 So. 2d at 467.
Ord.
88,Td. The Court cited all the cases discussed to point.
245 So. 2d 38 (Fla. 1970) on rehoor4ng, o9d"10% withdrawn. See, Tam
TrIbune, October 8, 1970. The f6triet Court of AV eik"fied the cam to thq aa Suareme Courtas a question of great Vubltc Interest.
Id.
86 47 go. 2d 548 (Fla. 1950)
245 go. 2d at 40.
Old. See also Board of Publia Jr4struotles v. Dom*,, M So. 2d 00, 699 (I'LL 1900)9 supra.
245 go. at 40.





43

penuaded to apply the rule that a statute enacted for the public benefit should
be construed liberally in tavor of the public ... 00
The Court then reinforced the IWUHams and Doran principles that: (1)
Legislature Intended to wmand the open meeting concept to bind every political subdivision or agency over which It has domJniotk 9, (2) the obvious Intent was to cover gatherings where the individuals will deal with matters on which foreseeable action may be taken at a later time; and (3) the prescriptive conduct [ (1) & (2) 1 to not to be circumvented by matters that are privileged, pertaining
to the duties and responsibilities of subject bodies."
A secret mwdng, the Court said, occurs when officials meet so as to avoid being
seen or heard by the public." Whether the meeting is formal or not, such secretive action violates the Sunshine Law. "It Is the law's intent that any meeting, relating to any matter on which foreseeable action will be taken, occur openly
and publicly."
The opinion contains several warnings; it warns those who are in doubt
whether they are convening in violation of the law to leave the meeting forthwith," and it warns those who hope to push the statute beyond debatable limits that the majority of the Court will meet future problems on a case by case basis
as they arise." The Court stated:
"'The Legislature did not intend to muzzle lawmakers and administrative
boards; to an unreasonable degree. It would be contrary to reason and violate the right of free speech to eonstrue the law to prohibit any discussion whatever by public officials between meetings. The practice of discussing politics and
government is part of our Amerk4zn heritage
Thus if there Is no Intentional secrecy involved, legislators can meet and discum their business without worry. "It Is only the evil of closed door operation of:government without permitting public scrutiny and participation" that the
Ism seeks to prohibit w
A Joint session, of the City Commission of Gainesville and the Alachua County
Commission at a local inn was scuttled on February 3, 1971, in deference to the SumAhine Law. OQ The same day the Gainesville Sun ran an editorial entitled "Statehouse Orgy;" Its focus was the Sunshine Law.101 After lauding its accomplishments the editorial continued:
,,YBut we are I disturbed by recent developments. Not only has Secretary of
State Stone removed the door from his office but . an Associated Press . .
reporter . (has) Interrupted a corporate income tax strategy session between Governor Askew and other legislators ... (1)t appears (that) some of these fellows sire trying to love the Sunshine Law to death. What we am is an in1brMational:.'ergy, put on foot by officialdom and naively joined by newsmen,
to'make the Sunshine Law unworkable."102
TMI PHONE ]MUNG AND "STATEHOUSE ORGY"-A FXACTION: APPENDIX H
1, would not call it a: conspiracy, but clearly a good many politicians in Tallabass" i were hoping that the news media and the people would prove the law vhwarkableto provide ripe justification for repealing the same. The editorial
was timely: warning of a growing movement.
Just.frre days later, Governor Askew called for moderation In the Interpretation and appHeation of the Sunshine Law. The Governor was quoted as sayIng'that certalft Millicult areas," exist In government which do not lend themWIves to coverage by newsmen, citing legislative strategy meetings as an exomplie ,""The question Is can you not talk to anyone about the business of the state until and unless the representatives of the press hear your every word?"

told.
lymedPUKUM" Ce v. WaUavWs, 222 go. 2d 470 (2d D.C.A. Irla. 1960).
Board o f public lfmt uction of Broward County v. Doran, 224 So. 2d 693 (Fla. 1969).
245 So. 2d at 41.

0 Id.

tialnesville Sun, February 1971. pg. 4.
Id. at m.
Id.
GatnsvMe Sun, February 8, 1971. pg. 15.





N





44

Governor Askew was required to throw opm, an "invitat*= anly", -Ainner meeting between himself, the Cabinet and C*pit4::Cvnter architeets, owMAr& 10, 1971, because of the SunshineLaw.
On March 8, 1971 Attorney -General rendared: An itVdinloit that beld
inter alle that the press and public had the 'right to Haten In on telephom I eonversations between public officials.105
Responding to this, H. G. 'Suddyl Dav* the Pulitzer Prime whmming Journalist who wrote the "Statehouse Orgy" editotial Inthe Gaiumville-Sun, was quoted as saying: "When a responsible guy goes around and -says two: officiabhaveu invite reporters to listen to a phone. convenation-thaVe Adicwouw.,
"Loving" ithe law to death, Davis fmid, "would, make the law so obnoxious *and so impossible, and so unworkable, it'll have'to be changed or repekW..IV* just that simpIWI
'Attorney General Shevin in the telephone opinion had also ruled that the phrase "at all times" prevents a board from 'holding a secret,"t, though the vote would be replayed at a subsequent publicmeeEwg.'". If members of tim press and the public were deliberately excluded from the,,public offices famished for the conduct of the public's business, there wdtdd then be. a Bunslzime Lawvlolittion in the opinion of the Attorney General.'
'Then perhaps Mr. Davis overstated the impact of the "telephanV rdling. Relying on Williams and Doran, certain telephone, conwbreations which, are part of the delibemtive process which would ultimately.lead to, recorded actim, ati. a formal public meeting could not be conductedcovertli.'"
In a March 6, 1971 interview with the Gainesville SuVeCapital- Bureau eorrespondent, -the author of the Sunshine Law, J. Emory Cress, mumd,:that the public-meeting law has suffered "telling damagefrom recent Oaurt, and Attorney General opinions." m "What they do is make it absurd," categorizing, Shevin!s telephone ruling as "way out" absur&m The other major, snaft acco 1. .:,to Cross is the Supreme Court ruling -that the law-applies.,even if therejoUbfit than a quorum present. "Cross said he thought that was clearly, put, indicating he did not intend -to prevent a couple of public officials, meeting forAimer or tABEing on the phone for fear of violating the-law."".
Perhaps hardest hit by the Sunshine Law are the tqunty- offidal%,becawe they work on problems requiring decisions daily. What MWV"s when aweraL,. say two, county commissioners meet With the publict Wlt-ties. director4.-.,or: -plan board member; or if they sit clown andtalk over a cuplof icoffee; are they,.taking "official action?" Must they give prior notice?
Most city or county commissioners polled, by tho Melbowme Wines In? 1971 felt that it was not a violation, and if it was, then the law was, too extres%&AA. U11 had a choice of the Sunshine IAw ornothing.41d takd theftn9bb* Law.?':-Pa
Refining the law 4 W.In an effort to clarify an, earlier opinion tbe+ Attorney. General% of Flartda opined on March 81, IM -that if a school board voted fm ft mevireupedatendent by code number rather t4an by n1ame there would be no, per +#a vJolAtIon of:: fte law, provided that all the facts available totheboard wouldaJwbeavatlaW to the public and press., and that all -such, vvtes or other aeffiam. of, the. boftrd be open to the press and pdblic."4
On the questiou of the validity or invalidUy of action takm 1w a pablici body in violation of the law, it was Shevin's optnion that it Is, not y#Jd ob Jn0*,jbut rather voidable, and may be corrected by aubMuent re4mwowent, tww VV

106 Id.
1W Tampa Tribune, Februsry k J9T1,..,Jt. should be noted that, Omatw_ Askew ,voted for the Cross b1U.
2" Melbourne Times, March 19, 1971.
207rd.
201d. at 4. The opinion actually uses the words "'purposely secret." There Is no 1AVftation Tutrement. See, Op. Atty, Gen. 071-42 (March 1971). 100 V
uOld. All V
lu oatnesvine Sun, March 6, 1971. pg. 0.
W Id.
Id.
lu Melbourne Times, March 19 1971
10 Yd. Commissioner Steele of fi;ivaid County. .... .
ul Op. Afty. Gen. 071-58. (March 1971).
2171d. The opinion contains a warning against using the nuso pro to" reenactment to avoid the erect of the law.





45

IR tbs IM, loWiSlative awden, several bills were succesel'ully Introduced to modifv the. Bunshins IA&w.l One bill listed six exceptions tobe written into the law that would have virtually repealed open-meeting requirement& The amendment provided that quasi-Judicial bodies, matters of national ri ty, land
M personnel probleoie6 eonferenow with attonMv, and other "wasitive
matterW1 would be allowed behind closed doors.3"
Anotber debated amendment would have provided for closed door sessions to deal with "matters which, if In public, would be likely to benefit a
whose interestsare adverse to those of the general community."
in many before the House Governmental Organization and Efficiency
CWmmttteP, Attoxney General Shevin urged defeat of the above bills charging public ofticials: "Give politicians an excuse to vlolate the government4n.-thesunshine law, and thats what they will do." 30
nf you give them exemptiona-1-244, they will do more than 1-2,34 when they get, behind closed doom 1 01 It would be a step backwards to amend this law. st Xn The law, according to the Attorney General, was not hard to Interpret aB long an the basic point that elected officials are to be prohibited from deUberately trying to exclude prew and public, is kept in mind at all timee.
Vembtrs of the Florida Society of Newspaper Editors felt that politicians were exaggerating when they said.newsmen wanted to listen in on telephone conversations. "Our concern Is with closed meetings or hideaway meetings by a quorum or committee with the authority to act."
On May 5, 1971, four years after the bill passed into law, the first convictions u4der the Sunshine Law were recorde&I The Mayor and Vice-Mayor of Fort rAuderd0e were convicted of holding "Tnany secret meetinM including one
the future dismissal of the town's police chief. This particular secret meeting was held in the back of a town police cruiser.
The Florida Sunshine Law does not apply to federal agencies operating in Y1mid&1w According to an Attorney general's opinion, the Sunshine Iaw only applies to state agencies. The question may again be brought up, because the agency in::.this particular case Itad open meeting rules promulgated by the Direetw: of the progmni6 under the IL964 Economic Opportunity Act. For most PurposM section. 1.01 Florida Statate% defining "Political subdivision," is applicable to determine the Sunshine Law*s status and effect11h his effort to bring, the most sunshine possible to bear on public meetings. the Attorney General. in late October of 1971, announced that notice of an oflicial meeting should be:gIven *hen official matters are to be considered and discussed, evm tbough the public body's membership to less than a quorum-'
On November M 1971, the father of the bill announced that it was never the IntOntlon of the statute to prohibit governmental bodies from appointing comnktft*es to deal with sensitive personnel mattem "as long as final action was taken publicly." n' There is no reason why "committees of less than quorums oushttot to be able to handle the gory detalls without throwing it all in the

'Cross welcomed, the Attorney Generars Opinion requiring prior notice. Cross introduce an am endmpnt to the law to achieve that desired goaL
my ln"#ou juqt to let In the press and call it a public meeting."
The former state senator also was heard to say that the Canney decision's "quasiJudicial". rule would "be a tremendous blow to the Sunshine IAgLw because every time PL board wants.to close a meeb-ng it can Invoke the quasijudicua ruling ly =
In what may be the first interpretation loosening the Sunshine Law's strin gent requirements. the Attorney General ruIed on November 11. 1971 that members of a public body may jointly inspect the phyeRal characterLRtlcs of a matter upon wWch:,they are to take subsequent official action.20 Shevin ruled that even though

us GalnesvMe Sun, May 4, 1971. pg.
20,JfL
GalnesvMe Sun, May 7, 1971. pg. 7.

Gatnesvffle ium. -may 19'. 1971. Tw. 1.
ix Atty. Gen. OT1-191 (July 19TI).
Op. Atty. Gen. 071-1519 (June 1,971).
GaftesvWe Sun, November 9,1971. pg. S.
in Ya.

Op Atty. Gem 071-361 (November 1971).





46

the public is not invitud to aten or atcpteitt 44Ver nMv:11h
is outlawed by theSusieM.Tepesm ffvm retwhcMW
mizes the posibiWity of sefet action. Is the public's receiving adequate, dac oienlne rrqdf?
this particular excursion, or has it comie to mean that themdamysadI place of the public to preserve the open -met ftso ,#bi oyalw
One month later' Sievin ruldthtaprtadioybrIs twtinte
purview of the law, but a body having stauoyoesadddstaaegv ernmniztal in nature should hold its meetig i the snhn vntog uc
lions only inan advisory apaity." An opinion reaching even further was publse In Jauary, 192 holdingtat two or mere legislators miay not hold asertmtlgwihheIedn oex eluding the press and public, so as to decide uon a oreo cln ettigt legislative matters.' According to the op..ii there would appear iiiii
violation if it were in full view, without prior.,argee hr h rs r public could have access.
One month later, Senate President Jerry Thomasanoceththelwds not apply to the Senate, but only toborso gneg:adthefelgiaos could ignore the previously noted AttornaeyGera' p o.

A NE2W EXCEPTION IS CMTD AWN
The atest chapter in the Sunshine Law's tur~bulenft es~ oincen colletive bargaining of public employees and the effect of the Sunhn Law. In astv raddock decided on May 17, 1972, the Florid*a SupremeCur ed ht ao negotiators employed by a school board in prelimnanry or tettv eahrcn tract negotiations could negotiate outside of public meig ihu iltn the Sunshine Law, and that these xiegottatots would beIntuedocnsld by the school board privately.I
The Court felt constrained to "merely afimthe lower court' s action," soas, not to "deny the public employees' rights to bargain collectiv'ely asgaaned by the Florida Constitution.18 It could be well argued that. the Court wa wit reservation "Judicially Implementing" the Constitutional collectiv provision In the absence of statu~tory guidance, without. regrd to temen employed.
The appellee school board's argument was~ simply tat th ttt's"nest of the sunrays. could cause ad or to the public which elected the board."'
The Court sustained the lower court's finding of fact~ that, "maiguRolc
tive bargaining would be destroyed if full publicity were accorded at each~ step of negotiations."I
The public's negotiators, the Court went on, must no~t face the Glah
(employee negotiators) with 9Ml Its cards exposed. There must be "an eqalpoi tion" afforded the school board In relation to those witbh~ ho itmsea."h public shoulJd not suffer a hanilcap at the expense of a S puitvew roe public Mneetings, so long as the ultimate debate and dcsosaepbi n
the 'offcial acts" and 'formal action' specified by the statut aretakeni pe
public mee~tiins.
In tis particular Instance the negotiator could not bn h oradI fact his recommendations were later modified by the Bor noe pbi et
Wings. Whether Attorney General Shevin pointed to hs earlier opno on the subThe Court clarifies Its earlier position by shifting the emha~s rom"mttr
on which foreseeable actions will be taken by the Board!' to"ofca einp taken at "meetings." Classifying the labor negotiations as prelim~inary delberaIftOp. Atty. Gepn. 071-390 (December 1971).
'OP Atty. Gen. 072-16 (January 1072).
GM(ainesville Sun. february 9, 1972. Jerry Thomas co-sponsored the bill in 1967. He felt that If he was correct then the law should be amended to Include legislators, "but ony If it utrietly spelled out what is eelfe functions were exclude."
us 262 So. 2d 425 (Min. 1972.
'I M'. at 476.
197Id.
'10Td. at 427.
'14 Ap. Atty. Glen. 071-82A (July 1971).






47

tions which "'may never result in any action taken," the Court neatly comes full circle to conclude that the Sunshine Law does not apply "where there is no relationship at all to any meeting at whichany foreseeable action is contemplated." In concluding Its opinion the Court felt that common sense and fair play required the Board to be allowed to privately confer with Its negotiator, because the public employees could do so at any time. The Court apparently forgot that public employees do not have the right to strike under the 1968 constitutioii.
In a stinging dissent, Justice AdIdne declared: "Thus far the government in the sunshine law has withstood various attacks where a few misguided local boards and agencies have attempted to seek a meaw by which they could circumvent the law so as to resume secret meetings.""
"The right of the public to be present, to be heard, and to participate should not be circumvented by having secret meetings of various committees appointed by the Board and vested with authority to make recommendatimis or suggestions to the Board concerning a matter on which foreseeable action may be taken."
CONCLUSION-THE FUTURE-THE AUTHOR
Perhaps more than anything else this history of the Sunshine Law has indicated several of the problems, potential solutions, opinions and reactions to the Government in the Sunshine Law. I have deliberately waited to this point to relate my own interview with the law's author, Lmory Cross.'
14r. Cross's major concern is two fold: (1) The debilitating effect of the "quasiju0iciaP' exception; and (2) "Shevin's absurd ruling" that the lawapplies when two or more public officials congregate. "The quasi-judicial ruling in Oanney is like Lincoln's old saying: calling a dog's tail a leg does not make it so--calling an agency quasi-judicial does not make it so." As to the Attorney General's two-ormore ruling, Cross cannot understand it," Shevin supported the bill as a legislator in: 1967, how could he do this! I meant a quorum, because final action is impossible without a quorum. If they had interpreted it like I wrote it, they would have bqen able to exempt personnel problems.,,
When I queried the former Senator as to some of the oddities the law fostered he bee -me emotional, claiming he never thought the media would crash a cabinet Meeting unless there was a quorum present. Also, he felt that Jerry Thomas was wrong-"The Senate is Included in the law-the new constitution cuts down the rightto go into executive session-right down -to the bone."
Cross feels. that had the courts not fumbled the "iftnal action" notion, the main argument (personniel problems) against the law would have withered away. Cross likes to tell an anecdote to those who favor secret personnel sessions.. He tells the story of the Racing Commission attorney who argued In favor of secrecy because "we get all kinds of addicts and felons etc. applying for jobs, and welloccasionally one slips by us." My goodness, bellowed Cross, that's exactly why we need the law!
The former Senator is sure that there are "people working underground to screw ft u]? I&gislatOrs dislike it but they are afraid to change it because the press and -the public liike it." Because of this he doubts if any amendments will pas% for quite some time: "The media has a right and a responsibility to be there and Inform the peovie-they have acquired the responsibility to see it is not ]N pealed.
When I questioned the former state senator on his views. on amendments he offered three:
(1) spell out the need -for a quorum to reverse Shevin s ruling;
(2) include quasi-judicial functions of administrative agencies (reverse
he Prior publication of agendas at all regul ly hed I meet(8) require t ar se u ed
Ings, and also at special meetings If there is sufficient time to do so.
-On the possibility of a federal "Sunghine Law" he thought it was feasible provided that some court or bodynot subject to the faw could determine before hand whether certain."Ulemis Were "national secret"' exceptions.
R., Mr., President, Florida government and citizens of the greatly benefited from the, law. Certainly, our govon= ent. there is not. perfect, but it is open and more effective, I think.

141 Bassett v. Braddock, 262 So. 2d 425, at 427.
Id. at 429.
Id. at 430.
One hour interview with Senator Cross at his Gaineqville office. July 7, 1972.




A52
A'U

I ask unaidnious conse4t, that a recent. eXcellent. review. of, the Florida law by Ruth. Mayes 13arnes be printed M"' f& &eora,
There being no objection, the review was ordered to be printed ill thb Record. as follows:

GOVERNMENT 1* THE SUN61tTNE: PWMYSE OU PLACEM?
In 1967 the Florida Legislature enacted U* "Government In the* Sumbine law," 1 which attempts to open the delftemtiona of state tud local governMents to the public. Since its passage, the Sunshine La* has been the subject:: or em6. tinued debate. This note attempts to place this debateln 1 v* by h
the scope and effect of the Act, analyzing cams and statutes of Florida, and 46ther states having similar laws, and evaluating ithe statuWs present'and potential impact.
THE DMMA14D P619 OPEN QOVM&NUZNT
The supporters of senate bill 9 (later the Sunshine law) felt that certain state and local practices, manifested in closed meetings and behind-the-scenes manipulation, indicated an urgent need for abolition of seeretive government pratlices.2 However, without media influence and pressure, -"Government iri the Sunshine" might never have survived committee action. In IM reapportionment (if the legislature had increased the proportional reprewntation of the urban cdnteft in central and South Florida. Generally, the urban representatives were more sensitive to the influence of the media than the rural legIslators who dominated the legislature before reapportionment. The meffla's active endorsement of the measure helped convlnce the legislators of the popularity of an open, meethii regulation and provided significant impetus for passage of theftinshihe Tja*.*
Legislative recognition of the desire for open government was not u nlque to Florida. Five other states enacted open-meeting laws while Florlda'sUll was being debated.,' The increased demands for open government In the UnIt6d Rates since World War 11 seem to have had no specific origin, but'an aversion to undOe centralization and irresponsible government revealed Itgelf In Such politiftl issues as reapportionment and home rule. The emergenceof an affluent and b0ftor educated society whose attention focused on sophisticated Issues: strengthened the demands for political responsibility. The increased impact of mass media on society played an important role In directing public attention to Inadequacies and abuses of government. Whatever its source,' the publics 'urge to participate more fully in legislative decisions was evident.
In Florida, while not all governmental umits were fOlt to be deceptive or corrupt, closed sessions provided a shield for occasional Inst"ces of: 1rresponstbility and corruption that public disclosure mlot have prevented. Furthermore, testimony before the house committees revealed hat the existingmeedlor more responsible government was not confined to the local level. One of the siate eo;n_ missions advised that the law not be enacted because many of the commisfifth"s applicants for employment were convicted felons, known drug iddlctl vr otherwise unqualifted for state employment. The commission disclosed tbAt It times employed these people either unimowingly or Inadvertently a .. V16aved: that such practices should not be exposed." In reaction, proponefits ofthe Ofinshine Law demanded the inclusion of personnel matters In the Act and emphaAod that this testimony Indicated an Immediate need for the bill."
LEGISLATrVE nraToRy op GOVER"ENT IN THr*:6tN8H1XX
After its passage in the Senatef the "Government in the Sunshine raw" was submitted to the house, where several amen ents were PmPosed.' Although

I Fla. Stat. 1286,011 (IM).
2 Interview with J. Emory Cross, State Senator from GalnesTWe, Florida, ia Gainew vIlle, Florida, April 14, 1970; Interview with John S. Rawlx,,Judge. Firpt District. Court of Appeal In Tallahassee, Morida, March 26, 1970 [hereinafter efted as intervtewel.
8 InteriAews, note 2,#,vra,1
4Aric. Stat. Ann. lim (1969) Cal GOV's Code 11 NiiO40' (West'l"Q) Ind. Ann Stat. 1157-601 et seq, ( 1967) ; N.J. Rev. Stat It IOZ4-1 st #eq. (SUPP 1M); ABC Stat. Ann. J 5-4-17 (195S). It should be noted that tbLe Morida bill was debated hDr ten years. It was Introduced in every -regular session of the legislature rrom 1957 Untn Ift paRsage In 1967. ...... ... ........
5 Interview with J. Emory Cross, note 2 supra.
7 Fla. S. Jour. 958-59 (June 1967).
I Pla. H.R. Jour. 958--59 (June 1967).






49

Some of these amendments migbt have resolved subsequent problems concerning the law's the senate refused to concur In ww restriction of Its original pro""' As a result only one amen ent was adopted at the Act's passage,,
and that amendment gave the law additional impact. It provided standing to any citizen of the state, Jurisdiction in the circuit courts, and injunctive relief tQ enable citizens to protect Meir now lrigbt."O The Sunshine Law, as finally enacted, states.12
(1) All meetings of any board or commission of any state agency of authority or of any agency or authority of any county, municipal corporation or any politicalesubdivision, except as otherwise provided in the constitution, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, regulation or formal action shall be considered binding except as taken or made at such meeting.
11(2) The minutes of a meeting of any such board or commission of any such state agency or authority shall be promptly recorded and such records shall be open to public inspection.. The circuit courts of this state shall have jurisdiction to issue Injunctions to enforce the purposes of this section upon application by any citizen of this state.
1' 3) Any person who is a member of a board or commission or of any state agency or autbA)rity of any county, municipal corporation or any political subdivision who violates the provisions of this section by attending a meeting not hold In, accordance with the provisions thereof is guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not more than five hundred dollars ($5W.00) or by imprisonment in the county jail for not more than six (6) months,. or by both such fine and imprisonment"
PRECEDENT FOR THE SUNSHINE LAW
Florida's statute Is not without precedent. Other states, especially western ones, have supported open meetings in constitutions statutes," and case law." In 1953 New X U
exlce and California were the first states to pass comprehensive open bieeting laws, which are'similiar to the Florida act. New Mexico's law requires that all. fmal decisions' of all governing bodies of state or local subdivisions supported. by public funds be made at public meetings." California's comprehensive Brown. Act Is limited in Its application -to local government levels, but it applloi even to library boards and recreation commissions.'s Moreover, Florida Statutes, section 165.22, is precedent for the Sunshine Law. Enacted in 1905, that section.requires that all city and town meetings beopen to the public. On its face, the S -03' e seems to reiterate the provisions of this earlier statute, which
VI
declares
"All meetings of any city or town council orr board of aldermen of any city or town in the state, shall be held open to the public of any such city or town, a4d all riekords and books of any such city or town shall be at all times open to the ineection of any of the citizens thereof.

The. House oquaidered repeal of the existing public meet! law applicable to city and town councus exe gurely administrative acts f affected airucies and
specific Inclusion ok themAtoiroludal ucation Association within the scope of t e Act' The representatives reJeoted these proposals, but submitted the following for senate approval: an amendinent givl circuit courts jurisdiction to Iss I action to enforce the statute, an amendment g ng an exemption from application of the law to hearings involving
Individuate charged with vlolatio02 of law or regulatiotte respecting employment, and an amendment !,rohlbitin Mcation of the enforcement provist ons or the Act to personnel mtters...Fu Jour. traune 1967) ; ]Ma.,H.R.. Jour. 958-59 (June 1967).
Pla. S. Jodr. 679 (June 1967).
2'Ma. Stat. 1286.001 (1969).
12TheTexas Constitution states that all trials must be open to the public. In 1935 the Texas Court of Civil Appeals held that the relevant section applied to the county commissioner's court: "They Ithe commissioners) meet as a court and transact the county business in open session, ouch requirement . Is substandh], both that the members may have the be=fit of the knowledge and opinions of the other members, as well as that e public ma en kTlow'wb nd where its alralre are -being transacted." Tarrant county V.
81 S. 2d 537 98 (Tex. e pp. 1935).
g,% le est 1960) ;. N.M. Stat. Ann 15-6-17 (1953) ; Utah
:14 Tarrant county V SmAth, 81 1 ,W. 2d 531 (Tex. Civ. App. 1935) Adord v. Booth, 33 Utah 2T9, 93 P. 734 (1
M N.M. Stat. Ann. I M,) i7
V Cal. Gov't Code tj 54950-64"O'Pe- 1960
11 ilf-M, stat.
1.:*6Y- 0"It JWest. 1966).
1"IL St t.: to,







In addition to a fine or imprisonment enforcement provision, the earlier law demands vacation of offc y any violator of theA LO
However, in Turk v. Rfchard 1 the Supreme* '!urt of florida constherbly limited the efect of section 165.22 by enuncitlag the so-callpd "formal meetn doctrine. The early law was held applica-bl chlr 1to 'Ybrmal assidlies of the council sitting a a joint deliberative body as .required authorized by law... [and] held for the transactioit of offlial tuicipat'business. Thus the statute, which opened meetings of city or town, councils or. ho rw aldermen to the public. was coupled tith a judiel interprettion regglring potential voting as a necessary prerequisite for the enforcement of opea meeting As a result, city and town government meetings were reauied to be eyestday when votes "could be taken, though [they were] not necessarily certa to be taken." 2 The narrow literal scope of the satute and Its further limitation by the judiciary left much governmental activity imne fro m public scratiny. For this reason, the 1905 law was largely inrefeve.
PESENT OONS ACTION OF GOVE4lfMENT 1FHE STTSHINE
Superficially, the Government in the Sunshine Law seems similar to t town council predecessor. However, relying on legislative intent, the Florida courts have given the Sunshine Law wider application than the former set Beause the Sunshine Law appears overly broad and ambiguous Ih certain areas it was challened on the ground that it was "void for vagueness." a Opponents of the statute asserted it violated the constitutional doctrine that a statutee whih either forbids or requiires the doing of an act in terms so vaghe that men of common intelligence must necessarily guess at its meaning and difer as to its appi cation violates the first essential of due process of law."" Rejecting this contention, the Florida supreme court "held that the law properly expressed its legislative intent and provided a substantially clear mandate.27
Although the Sunshine taw is constitutionally valid, the brea8tlf Ianguage has raised problems of construction. The terms of the law are-net tempered by any practical exceptions, nor do they provide preiase guidelines for operatimat compliance. Judicial interpretation has corrected some of the' drafting flaws, but three basic, interrelated legal issues remain. The iunshln Iaw does not state which bodies are not afected by the law; it does not exelute any I Mar Of deliberation from its scope; and it fails to recognize any stage in the dellboative process that might not be subject to the requirements of the Aet. While I Odt have not explicitly delineated the issues in this manner, the Second IItrlet Court of Appeal indicated in Times IMlaking Co. v. WOldme," that aginpt heAslon of the full meaning of the law requires such analytical division .
No Florida court has faced the question of which agencies might fall outMO the application of the law. The pnly litigation to date deals with thloseagencies to which inherent applicability is assumed, such as city connells and boars of education.' The language of the Act applies to all facets of gormneat;" MO ever, the question of applicability Is unresolved with regard to groups sach a ad hoe committees, which act in a purely advisory capacity.
It is concevable that unlimited application of the law could prodace nAdesirale results. The goals of certain investigatory groups, such as these fighting organized crime, might be jeopardized by premature exposure ot Inportant procedures and information. Where an ad hoe committee pa rdly advisory and exercises no real powers, where it reaches no Anal determination, and where its findings #till sult in later action by an atithorty subject to the Sunshine Laws or the courts, the application of the law could create InefIveness or ineficiency to the disadvantage of the state. One solution to the allem2 Id.
47So. 8 54 la. 190),
Td at 544.
Timest Pulhing~ Go v. Williayms. 221.) Ro. 24 470. 472.(2d n.C.A. Iola. 19(19).
PRee Miami Bech v. Berns, 2415 So. 2d 38 (Ma. 1971). a 281 So. 2d 847 (8d DCA. FlR. 19701. aff'a 32 Fl. Sup. 7 (11th Cr. 1969) ; Board of Pub. Instr. y. D 24,8o. 2d 493 (Fla. 1969) : Carrey v. Board of Pub. Instr., 231 go. 2d 84 (1st D.,A. rla.17) Tien Publtabing Co v. Williams, 222 So. 2d 470 (2d D..A. Fla. 1960), 21Roard of Pub. Twatr. v. Doran. 224 o. 24 (13 (Pla VOID).' 0 0onnaly v. General Constr. Co.. 269 TT.5. R5, 891 (1920.
Roard of Pub. Instr. v. Doran, 224 So. 2d 698 (Fla. 1060). "222 8n. 2d 470 (2d D.C.A. Fl. 1969).
Board of Pub. Instr. v. T)oran. 224 Ro. 2d (198 9) : Ustsey v., Bard of Pub. TinOr., 261 Ro. 2d 84 (st D.C.A. Fla. 1970) : Times Pubtfshing 0o. v. WOame 222 Boi 2d 470 (2d D.C.A. Ila. 1969) : Berse v. Miami Beach, 32 Fla. Supp. 7 (11th cir. i969).
*Ree txt accompanying note 11 upra





51

MR would be to require only that such a committee state publicly the purpose of the group and announce its membership. In such instances, especially in investigatory actions,, the committee should be entitled to conduct private amgion& Thill would accomplish minimum compliance with the basic purpose and policy of the Sunshine Law while providing for confidential meetings when
necemary.
If this exception were made, a problem would arise concerning which ad hoe or advisory bodies should be excluded from application of the law. A broad
exclusion would permit many to hide behind this shield and undermine the effectiveness of the law. Unless a showing of good cause Is made to warrant exclumdon, all such groups will remain within the scope of the Sunshine Law.' A group In need of confidential hearingscould Insure its privacy by requesting a court order upon proof of the advisability of closed smions. Such a procedure would place the burden upon the committee or group involved to show that the open meeting policy of the state was not being unnecessarily evaded.32
The t"m and stage of deliberation to which the law is applicable has In several cases been delineated by the courts. Rejecting the "formitl meeting" doptribe of Turk v. Richard,83 the court In TimeR Publi8hing Co. held that the law applies to the "entire decision making process." 84 17he Florida supreme court upheld this Interpretation in Miami Beach v. Berw35 and further emphasized the applicability of the Sunshine Law, even to informal assemblies,
by stating that section 286-011 in effect repeals section 165.32.315 The fact that no voting will take place at a particular meeting Is no longer a bar to the necesSOY of open sessions.37 Any stage in a proceeding-from proposals and reports to...discussionsand recommendations--is a proper subject of public scrutiny. .,,.The ruling In Bern8 was portended by Board of Public Instruction v. Doran.," tb, which a school board, reLving upon the Turk formal meeting doctrine, eontinued to hold executive sessions from which reporters were barred. The -school board had asserted.,tbat only formal action was subject to the mandate of the Sunshine Law and argued that the legislature, cognized of existing case law, bad only Intended the new law to extend the scope of Florida Statutes, seetion 165.22, beyond the, city and town and council level. The court provided a.,elne to the missing definition of "meetings" by declaring that the law "was 0 cover any gathering of the members where the members deal with some
matter on which foreseeable action will be taken by the board." 89
The most explicit clailfication in this regard, however, is found In Bern8 v. Miami Peach, In which the trial Judge states: 40
"The Florida legislature has mandated that.... Deliberations, sessions, eonfeMces, 'briefings, expressions, discussions, proposals, recommendations, actions, rePOrts, etc. must be open and public, for these are as much 'official acts' as the fiftl vote Itself."'

Miami Beach v. Berns, 245 So. 2d 39 (FU. 1971).
a see id.
n 478o. 2d 543 Qrla. 1950).
34 222 go. 2d 470, 474 (2d D.C.A. Fla. 1969).
35 2.45 So. 2d 38 (IMa. 1971). Citing Times Publishing Co. and Berns the Attorney General of 'Florida has stated the opinion that the use of a se(--ret ballot to elect a chool boRr#- chairman vtolatedthe Sunshine Law. Op. Att'y Gen. Fla. (San. 27. 1971).
w Id at 40.
87Thp court clearly rejected any requirement of a quorum by statinz: "[WIf, have held thatthe open door poliev. announced by the statute applies to informal Sqwell RS formal
-Me6tinks of a board'at which there Is a collective decision or collective commitmpnt of a maJority of the members: to take action In a particular manner on a matter afflecting the 1),011c. Any action, so taken Is an oMetal act within the contemplation of the ststute and rtile which we have announced. When a minority of the members meet to investigate or discuss a public Matt" then It becomes a factual Issue to determine in eftch case
the majority has agmentized Itself Into minority groups merely to collaborate bfi a d0clslon In pr1v I %e ptirpOlse of thus secretly concluding the matter." Id. at The Attorney GeWai of Floxida has stated, however, that an Informal telephone eon: versation or an inf6ltmia'dimusslon between two or more school board members is not a Prosecutable oTpnse" If there, to no attempt to exclude any member of the public or press K"Wing t th Of discussion.* Where a quorum Is present at Informal
ii4tgk; howevek, lc4ble eoAlacaetion rests on the board members to discontinue meeting or discussion of Public business ungn reasonable notice [Is] given since such discussion witbout:,ifneh notice constitutes violation." Op. Attly Gen. Fla. (Jan. 27, 1971).
Edlftrls Note: Since the writing of this note the Supreme Court of Florida has affirmed th' h IdlIn of the Ffr f Dfqtfl t Court of Appeal In Canney. Thus, exception of quasiketai'matters i6m' the, erect of. thi Sunshine Law Is -now firmly established Canney
Of Ptfib- TP,00-, $i%- 39,473 and 39,474 (TIa., Treb. 24!, 1971).
f2 80 ,, 2d 6 19119).
at 698 (ex. d),.,
40, Fla, s phasb adag
7 9 h Or. 1909)1.




tZO)
"46d

Thust it seems that if a groues' f itr;6, d "A61heli*w ao
stage of its proceedings will be
Dicta in Times, Publishing VO.'a ieVftW*:1t6f11e'kcofd? lfttriot'o. dillt e Appeal expressly viewed quasl-judicl4l dM eriftic6k a &is th 7181ons
of -the Sunshine Law. In CanneV v. Bot" 6rPahUc 148hvetion, =eir, he First District Court of Appeal disagreed, holding that quasi-judicial ac1J6)ft1g -do not "fall within the purview of the StjLt *Alav(Yan*W Tnv6l*ed t decision by
school board relating to the disicipline of & student. Rel")mgttobfi' i V,
tiOn 3, of the Florida Constitution e te
the dourt emphaslzedlhr t: it alon*bOtd ft exclusive power to order the conduct: and prbOdure of the: r AUU I
of the judicial branch o The opinion thpn*t ed'that the I c. liooot
quasi-judicial functions in a-county school eglsla re
but: [once ft has' trftnsfOrm6d
any of the board!s responsibilities and d. ties Ato that of a JtM"al charactet, Ils prerogatives In the matter have ceased... Neither th public nor the.'ptegs"hffs any more right to enter Into the judicial dollberations Ot the members of a to* Oy board ... than they have to enter into the conference room of the u.]Dre'me 06urt Of Florida when the members of that Cdurt are deliberating UPPRI it judicial question or into a petit jury room when those citizens a e deUbemtlhg verdict-" Up(M t#eIr
Thus, the first exception on behalf of the governmeiitiulots has.Uen carved out. The controversy stemmtag from this decision concerns the propriety of equating quasi-judicial functions 'With actions ok the state judicial systeifi. If such reasoning is proper, disciplinary 'Matters, such as those in c ,nneW, and other quasi-judicial activities will no longer be subJOct to'the, SunshineJaw; any session in which a decision affecting a pri part' Is deliberate' '1111ftht
vate Y.
be excluded from the Act's coverage. If, however, the dieta oVVimes Ptibjiftm,, ffl Co. is adopted by the lqorida supreme court, this exception would be eliminated. The split of opinion between the 'Second District Court -of Appeal in Titnes Publishing Co. and the First District In Ca4weV has forced thp supreme court to hear the question.47
It is illogical to assume that no other exception to the Sulishtne,, Law w91 ever exist. However, even in cases where the law's applicatlol may -result In. great harm, -the nonexclusory nature of the law will probably cause. ex6eptiolis i6i bi developed narrowly, depending on the circumstances of each cue. Nevertheless, the broadness of the statute, coupled with the recentness of itsenactment, makes judicial determination vital for the resolution of Problems involving tJie.applJqability of thislaw.
The Second District Court of Appeal in Time8 PubUshilW Co. Ss contentions that the Act has generally recognized exceptions -and. expressly de(jaixed that personnel matters were subject to the law." The cofirt atserted Pere.Arle 6d no exceptions unless there is a constitutional impediment to such a mandate .... 11 49 However, the 1968 Florida Constitution provides little Immunity. The only provisions that have yet been recogniz6d as Impedfm6nts are arUele V (the judicial department), section 3 and 23,' dealing respectively with procedure in the judicial system and discipline of attorneys. I
Recently, the Supreme Court of norida endorsed th'e' Times Publishing Co. interpretation "as being an accurate analysis of the sutdeet statute." -'Signifi222 So. 2d 470, 474 (2d D.C.A. Fla. 1969).
42Quasi-judicial to defined as "'a term applied to the action, discre0on, etc., of public administrative officers who are required to Investigate facts, or ascertain th* existence Of hicts, and draw conclusions from them as a basis for their oftial action aud to exercin discretion of a Judicial nature." A quasi-judicial act Is defined as "a Judicial act verformed by one not a Judge-- BLAc]K's LAw DICTIONARY1411 (4th rev. ed.. 1968)..
0 231 So. 2d 34, 39 (lot D.C.A. Ma. 1970).
FLI. CONST. art. V. 13: "Practice and -procedure--Tho- practice and procedure in all courts shall be governed by rules adopted by the supreme pourt It
45 Canney v. Board of Pub. Instr., 231 So. 2d 34, 39 (lat D.U*A. FIR. i0o).
40 Id.
47Zhe Florida Constitution grants 46conflict jurisdiction" to the I supreme court W;k an district courts of appeal are In conflict with each other.. Fla. Const, art. V,.:i 4(2). CA*W Ir. Board of Pub. In8tr. is now pending before the court.
Times Publishing Co. v. Williams, 222 So. 2d 470 (2d DX4. Vu. 1969).
AOld. at 47 3.
p of attorney*-Tb* Ougo FLA. CONRT. art. V, 128 provides: "Admission and dtoci line
preme Court shall have ezousive juriadjetion over the admission to the practice of law and the disciplining of persons admitted. It may provi4e for agency to handle afttw stons subject to Its supervision. It may also provide for the. handling of dtseretLanary matteri In the circuit courts and the district courts of appp4 or b I na co]WstIng otmembers of the bar to be designated by It, the.snWexe coua =m $a,,, s"er vision and review." Art. V. 3 provides: "PractIce anil Protedure--The ee and procedure In all courts sball be erned by rules adopted by the oupreme court.'* 3o. 2d. 88 (Fla. 1971).
51 Miami Reach v. Berne, 245 gov









With regal to the auumated public bettes," there are other faesof the
11[~bm,5 ., r~flgtions siih ind the attorney . Hisproesoa
conduct in [pending or Imndi ngwa .~al ... Is govred by the 1Otn ofa IWhles.w. gpoulgated by the .urm or ... Section 28 of Art. .
gives "eaolmilve"l Jurisition to the Supreme Court in the disciplining of attornara; amdt $s. kcplniy power necessarily Includes the exclusive province to procre 6 le ot r~nhaneut the breadbing of which renders an atteray. ameal to such .. .ne
117hidatr .. Io writheat any authority to directly or indirectly Iter
fep.Wib~rImai an attorney Ini the exercise of his ethical duties. .f.
e6mpined that th6 exception was restricted to "'that area of the
attoresrieten'elationship In wlb4BE the att4col ob~gafion of the efforney
A~Ic th thedSictates of this statute. . [T],he act does not permit
prinffeeItafon between the agency and *its attorney in any other eireamSt~w . ." nce A gover'nthental unit may not exercise the privilege, but
atton.0 my utiit to safeguard his professional standing.' While partial
nonocoultou f he orny ent privilege of confidentiality may be criticized, t~e 11rf'o nth not so ttleme as others. Under a' similar statute," the
Ak n s ort ae ruled that the traditional lawyer's privilege is never valid."
EN alaaMNsTe Or Tna SUwearNE LAW
eamuwar to enforethe SunshianIAw has been granted by the provisions of the statute: to "apy. citizens of this State.' Problems of standing are thus virtually elimnated for Floridla nfoalatrcement may be accomplished by injunetive rellef, orders feebring past acin:of, meetings vok) and criminal penaltied @T 'e Tmetbaieage Oa.ses noted: "InJionetite reliet Io an extraordinary remedy which issues only when justice requiree and there is not adeut remled lt ltaw,- a whyAthere ,Is~eal and imminent olanger or Ireaal ingap."** Italeve, thae Opdiio conqlgqd that the statutory provision forinuc tive raie mandaesa that violation. of'the law "constitutes an. threparable Dublie
inpug'm .Jefamtiona eqr the annshin Taw are .4tre ealy obta iable bee~se ofa the rts.. .need not be proved, ie., -an Irreparable injury; aw4. mere .hw tesa~tute has~been or is clearly about. to be violated
The uisine w t~e: [NJo xo hipp'ou rule, tion o" formal action shell-be~cnlee bgi4p fet g4han or thada 1aetn.*Tia
acy a or rolig ofa a neeti! later declared In 'vIolationh of
is o *i iAmay, b Ignored by Dersons siabject to sach action.
UU rfeg~yenacted decislitns Is -charactititc of similar 'lawl that were pIR* 1,ohr staes, almbet simuoltaneonsly with the' unshine Law."1
.a re., older 1)ave trot so gaickly 'Voided such action auto. bdiht -fwtoae J1aw" at tNew Jersey Is applicable to any "group ofatwor or More paeshei egagebb .. to perferrm a public sevenaental tenction by offic1a1 setten." "Ofletat n is defletby statute as a deteramlaation by vote."f
A220 Ban 24TO-4760d DS .C. Pi4n..


w~~ 8aa .M~r.25Ak 0,2 S.W. 2d 758 (1968).
a Pla Stat. 1201 .16). Thselause ma present constitutional problems of
prviegsAnd Im WtU R xatythe Baselle lAw weud not necessary secure
migh OA wh.pV. propety In PletA to be inresent at zoin com.4.' 24 4%; 4O(2 A. M&19ge)'.



J. RV. tta. 1 10.4-2 (Sepp. 1968).





























thto
spexiojdcayhsee ple hssaue I oth ai hti a upotdb ulcuc sTa eAkna c eietsisitne Soeb ttn httelwe W toss"l ftegvrnn oiso MmdiplteL. o 1 sips dsho itit, n l ors ue~,cmlsoa ropiain of hSttofAknaecpGrn 1respotdwol rnprby anlcfns(rexedn ulcfnd ieAkna0 o ishv p twncnrnetih n"plcbebd". 'et64t6 tauepo1wgie lihes o s ndtrlIg ahcs.Peual, h. 6dt'f.A
apl hi tttemcngtecutso e eiohaeaptdt~p DeiiinlwrsintectdsaueRhv hsbe tSzd.u'6~ o
meip~tih .4
88iilitrrtto n ort aeapidtelw oa rea l gnls9 oigcm isos"addl-ve lcrclcmate Th90 rso te ttsmyas eaie y h'ocfcrftesad exmlsgnrlycnand01tesaue.Clfri 'o xm)%seX~y 92lddlbaybad ndrceto omsin."TeFoia$ua 4Lw lak hspeiin;yt2b8t radh twudcrailse e, o th93 v-etoe gnie.Dtriigtegopi nt hc h'a dosntapy0oeeI4aohrmte.I s oewrh htAkna, h onyohrsaewoecut96entajuiae h usino plcblt! 9lopse6t a n167 ~ e eio n a~~naaswr nce in15,adteNwJreysauewfpse n198 fteeprecso onhrsae r niaie tseslkl htteqetorwl rs n h





55

in the Sunshine Law, explicitly allows recorded or live broadcasting subject to reasonable rules and regulations. The media may be required, however, to pool recording or broadcasting facilities.' In their notice provifdons Arkansas and California recognize the Interest of the media in public meefings.'-"
Problems have arisen in other states concerning the broadcasting privilege. A New York municipality, which bad open meetings, was perwitted, for examplet to dimllow the taping of an open session by a private party, because official minutes were. taken at the meetlng '" The California standards are more practicable. California's attorney general has ruled it is within the discretion of a county board of supervisors to refuse to permit a radio station to broadcast ita regular meetings.' The California courts, however, have ruled that "where a recorder Is silent and unobtrusive and . does not interfere in tiny way with the meetings" taping should be allowed."" The California view seems reasonable, while the New York decision, by comparison, seems unduly restrictive. So long as the rights of others are respected by the media, there appears no reason to bar taping of public meetings.
THE SUNSHINE L&W IN PERSPECTIVE
Government in the Sunshine assures the right of the public to be present at all important meetings of governmental units that affect them. That right to bd present is unqualified except in certain unusual instances. The law of Indiana explIcIty states the essential thrust of open meeting laws: 111[P]ublIe pro6edin6 Shall be open to any citizen of this state, and every citizen shall, insofar as physical facilities permit; be permitted to observe such proceedings." ift As illustrated by the parties to the cases on the subject, the news media are apparently the most interested in exercising this right to attend. Three of the first four cases in Florida involve attempts by newspapermen to be present at "executive, sessionm or closed meedngs of public bodies.' Press utilization of open meeting provisions may also be observed in other states, such as California 101 andjudian4.1' Television, like. the newspapers, takes an active interest in, Government In the Sunshine and keeps the subject before Its audiences.'
This is not to imply, however, that the Sunshine Y-aVv And similar statutes were enacted only for the convenience of the communications media. Cases arising. from public meeting laws include private suits challenging zoning deeisionsue racial apportionment of schools,' disciplinary actions by school boards.'. decisions of city electrical companies.118 and dismissal of public personnell.1 -Open meeting laws afford interested citizens a chance to attend informal, sessions to see wliat is decided and how the decision is reached.

OXCLUSXOX
Y*Wte its e unnecessary vague 'Portions, the GoTernment in the Sunshine Law is a step toward more opep., and responsible government. Definitional phrases are needed to assure a better practical application and for added clnrity. Vhe Past refusal to exempt personnel. matters, especifillyin disciplinaTy investigation, report% and hearings, is unjust to those unfairly accused and ahould,4be -,,mmined.- 'Ad aDy, th-e law's application to certain ad hoe
aud.,advisory groups. should be reevaluated., Finally, the lack of a uniform notice provision undermines the effect Qf the law by maldng compliance with Government in the Runshiue depend in some instances upon non-existent means of informing the public of prospective meetings.
2a ,rj 57-408 6) 609.,
20 Ark Stat., Ann. 112-2805 (1968) Cal. Gov't Code 154950 (West 1966).
20 Davidson v. Common 00"di, 40 Mine. 2d 1053, 244 N.Y. 19. r2d 385 (1968).
P il 900-49620 Cal. Attly Gen. Biennial Rep. 52.
eveng v. ity of Chino, 233 Cal. App. 24 77!$, 778, 44 Cal. Rptr. 50, 52 (1965).
W.Ind. Antk. Stat. 1 57-404 -f,1067).
IOMAaml Reach v. Berns, 945 go. 2d 39 (Ina. 1971). Board of Pub. Instr. v. Doran, 224 I;o. 2d 699 (Fla. 1909) 'Tliuom Publishing Co. *. Willtamig, 222 go. 2d 470 (2d D.C.A.
moment Newspaper Guild v Sacramento County. Bd. of Supervisors, 263 Cal.
41.4 60Val..-Apft., 480 (1908).
rindliana Is' the oifly state that gives broadcasting special attention In Its statute. Sea Ind., Ann. Stat. 1157-601 to -609 (1967).
Req, e: RdftorlaO -TV. Jackso4ville, Florida, April.21. 1970.
Wt I 61,T
Zoning d. 6 'Adjlust nent, 79 X.J. Snper. 546, 192 A,2d 305 (IL'963).
v. -Bmrd of JMuc 86 N J.
Super. 9i,205 A.2d 762 (1964).
Canneyv aid of Fub. instr., 231 go. 2d 34 (Ist D.C.A. 1970)'..
to Raton PU h*56M.V V'1V A(ibbes 76 N.M. 535, 417 F
M '. (1966).
!,o; T" na W App, 2d 608, 289 P.2d 24S (1055)a




56
In spite of its unpoUshed draftsmanshJ& the problems pre qnted by the Sunshine Law. are easUY outweighed by potential utl#ty. 1%p valtmble
opportunity: to observe and participate in ko er=eht dectea6fis" 1 uMeidstblv: secured by the Sunshine Law. Greater. P redslon, however r,, WoV14 eocOqr a more meaningful participation by the generoq publi'c.
RUT.U MAYM
Mr.'Cnnm. Mr. President, I believ6 t imW
a F deral- CtInm6nithe-Sunshine Act is a logical eA P
and the acceptance of the disclosure provmions in the, Freedom of U formation Act.
All of us know of the feelinp of alietudiort and fnLstration So Ma iy people feel toward government thes. e &ys ,As goveri uieilt. As grown, it seems to have gotten further away, out.of the reach of: People. it is. not responsive enough; there is too little communication hn:d too little understanding and too little trust betweepL *iq- I saw the results of a recent survey conducted by the Viaiversity, of Connecticut in which professions were ranked according -to the anwmt of trust the people put in them. WeR, out of 20 "prof essio"Ins" in6idOR in the! suirve.y, poii ticians ranked No.49, just ahead of used car salesmen and:. rWeral notches below newspaper columnists. It reminds me of the old jakB about whether you would buy a used car from -a pd4tician or not.
1 believe a good deal of this problein is due to the aum of wrecy that surrounds too much of our Goveinment-An most cam, totally unnecessary secrecy. Secrecy in government hasrightly become a hot issue; for example, the Pentagon papers and the Anders6n v&-Mrs. These revelations have caused greater swicipi and Oynicism about g ve '1r-'t:ii:iL&,ering the impression CO
o, rnment, of bur aucracy and ngress
in backroom decisions and dealing. It may be overreaction to some degree, but we cannot deny the public view of goyernment as too OJosed and consequently unresponsive. to people's nwe&o
Secrecy in government was an important theme in the recently ownpleted Democratic National Convention. In its platform, my party pledged to transact the "public business nublicly," except when the national security might be jeopardized. t t me cite a key proposal from the platform plank on "The People and the Government" wMeh calls on Democratic Members of Congress to
Enact "open meetinW' legisiatlon barring the practice or conducting the public business behind closed doors. This should imelude so-4called markup soodons by legWative commiftees, but should, allow for e3reniptions Involving hxdonal security and 1nvasions of privacy. To the extent pomdble the -mme wineWe should apply to the Ebrecutive Branch...
It is the principle that I second with my bill, not., for partisan reasons, but because it answers the people's needs. ....
The Members of this body are well aware of thwcritieismof 40 ongress for its practice of closed eo mi proceeamp..., Such criticism, within and outside of the body, moved "the Congftss'to reform sme of its meeting practices in the Legislative &fotfti Act of .1970. The overall hope of that isform was' to 'bring: congresdonal4leliberations under closer public scrutiny. Yet, exceptions werqMade for M.Arktp sessions and the committees themselves could clow ibeir delibotagow by majority vote.
The first session of the 92d Cbng,,rws in IffV the firstte4. ear for legislative reforms. I was here in my first 9:4 vmr and my
opinion the reforms proved a failure. A Oo: .99
port of February 1972 shows. 'how weaser the hnpart hAs beemi in'the area of openness of meetings. Thirty-six percent of all congressional






57

committee meeti ere closed, a slight decrease from the 11prereforml)year of I exactly the same percentage as in 1969. More
importantly, the number of closed meetings last year was in no way signifi percent of closed sessions
cantly different from an average of
Another reveal' st istic in the Congressional over the last 20 years inf at
Quarterly survey was that 97 percent o those Senate committee meetIngs fiscally designated as "business sessions"--or anizing markml up, voting, bri efing sessions-were closed to the public.
f the final decision and amendment process is conducted in such an atmosphere, is there any wonder that questioning of our legislators' motives results? Even if hanky-panky is not present in such proceedings, the cloak of secrecy heavily implies its possibility. We all recOgnize that sound reasons exist for closed or executive sessions and my earlier remarks identify some, but how is the pu lic to know whether a closed meeting is hold at the personal convenience of the legislator or for his personal gain?
I ask unanimous consent to have the full text of the February 8,1972, Congressional Quarterly report on "Committee Secrecy" printed at this point in the RECORD.
There being no objection, the text was ordered to be. printed in the RECORD, as follows:

Commrrrm SECRECY: MnqoR ImpAcT oF RmroRm ACT
Clongressional commi conducted more than a third of their 1971 meetings
in secret during the year In which the Legislative Reorganization Act of 1970aimed, In part, at opening proceedings to -the public-went into effect.
Thirty-six percent of all congressional committee hearings and meetings were held behind closed doors in 19n. This marked a decrease from the 41 percent recorded In 1970. but matched the secrecy score for 1969. The pattern of the past few Congresses has been to hold more open meetings in the first session than in the second. (1970 Almanac p. 1117)
The House, as in the past, had the higher percentage of closed meetings. It barred the public from 41 percent of its committee sessions in 1971. This was down from the 48 percent of 1970 but comparable to the 42 percent closed meetings in 1969.
Senate committees had an over-all secrecy score of 30 percent-less than the 33 percent of 1970, yet greater than the 28 percent recorded in 1969. Toint committees continued to report a low number of executive meetings: 20 out of a total of 126.
Since 1958, when Congressional Quarterly began its annual study of open and closed committee meetings, 23,720-or 37 percent--of the 64,231 meetings reported have been closed to the public. Statistics on committee meetings are given below. (Standards used in compiling the study, box this page.)
Total Number Percent
Year meetings closed dosed
1953 --------------------- 12,640 892 135
--------------------------------------------------------------------------------------------- 13,002 1 243 141
1965 ------------- ----------------------------------------------- 12,940 1:055 136
1956 ------------ ---------------------------------- --------------- 13,120 1,130 136
1957_ ------------------------------------------------------------ 12,517 854 134
1958 ---- -- ------- I ------------------------------------- 13,472 1,167 134
19" ------------------------------------------------------------- 13,152 940 30
------------------ ---------------------------------------- 12,424 840 135
1961 --------------------------------------------------------------- 3; 159 1,109 135
1962 ------- I ----------------------------------- 12,929 991 134
------------------------------------------ -------------- I 3,8U 1,463 138
----------------------------------------------------- 12.393 M 132
I ----------------------------------------------------- 3,903 537 39
1966 ------ ------------ ----------------------------------------- 3,869 626 42
1967_ ----------_- 1 716 39
--------------- -------- ---------------- 4,412
1968 -------------------------------------------------------------- 3,080 328 43
1969 ------------------------------------------------------------- 4,029 1,470 36
---------------------------------------------------- 4,506 1 865 41
------------- ------------------------------------------------ 4,816 1:731 36
Total I ----------------------------------------------------- 64,231 23,720 37
Meetings of the House Appropriations Committee, all reported closed until 1971, were not included in the study until 1965.

80-459 0 77 5





58

House Appropriations: One of the noteworthy developments In 1971 w= the opening of selected House Appropriations Committee.. hearings. Although only 8 percent of its sessions--36 of a total of 455-were open to the public, this was a contrast to the zero percent recorded in the past. (Committee staff mezabers reported several open,-meetings in 1970; however, since these were carried as executive sessions in the daily digest, they were listed as closed in Congressional Quarterly's tabulations.)
The Legislative Reorganization Act of 1970 stipulated that House appropriations budget hearings are to be held In open session, except when the emmittee determines that the testimony may affect national security. (1970 Almanw p. 447)
Other House Committees: Ways and Means was the only other House committee, besides Appropriations, to meet more than 100 times and close Its doors more often than not. It closed 69- of its Ill sessions for a secrecy more of percent
The House Judiciary Committee: closed 47 percent of its 150 j eetlngs. The number of closed sessions held by the House Armed -Services Committee continued to decline in 1971. The committee secluded itself 41 percent of the time, as compared to 57 percent in 1970 and 64 percent in 1969.
The Education and Labor Committee remained at the top of the list of committees which met more than 100 times and most often in open session. The committee closed only six of its 199 meetings for a secrecy wore of 3 percent
Other committees which met more than 100 times with comparatively'few closed sessions were Interior and Insular Affairs, 20 percent closed sessions; Government Operations, 22 percent; Interstate and Foreign Commerce, 24 percent. Foreign Affairs, 28 percent; Public Works and Merchant Marine and Fisheries, both with 31 percent.
Senate Committees: Only one of the Senate committees which met more than 100 times held the majority of its meetings in executive session. The Armed Services Committee closed 118 of its 150 meetings, or 79 percent Public Works barred outsiders from 50 percent of its sessions. Foreign Relations closed Its doors 43 percent of the time.
Senate Judiciary was the leader -of committees wbich met more than too times and often in open session. It closed only 15 percent of its 167 meetings, Both Interior and Insular Affairs and Labor and Public Welfare closed 20 percent of their meetings; Commerce, 21 percent; Appropriation% 30 percent
Joint Committees: Few executive sessions were held by joint congressional committees. Of the 126 meetings reported in the daily digest, only 20, or 16 percent, were closed. The Joint Economic Committee, which met the most frequently, barred the public from only two of its 76 meetings.
Legislative Reform: In 1970, Congress passed its first reform act in 24 years. The Legislative Reorganization Act contained a number of provisions affecting the conduct of congressional committee meetings. A main thrust was to bring committee proceedings under public security. The reform legislation provided for making public the outcome of committee roll-call votes.
It stipulated that Senate committee business meetings are to be open excWt for markup (when a committee revises, amends and decides on the final language of a bill) and voting sessions. Senate committees also could close their business meetings by majority vote. k.
Ninety-seven percent of those Senate committee meetings specifically designated in the daily digest as business sessions--organizing, marking-up, voting, briefing sessions-were closed to the public.
The Reorganization Act also stated that House committee business meetings were to be open, except when the committee closed it by majority vote. fteluding the House Appropriations Committee, 79 percent of the sessions listed an business were held behind closed door. (House Appropriations meetings were DA included In these tabulations because subcommittee mark-up sessions were not reported to the Record.)
Public mark-up sessions are rare. Most committees prefer to write legislatfok. in private for a variety of reasons. Some members believe that open meettap tend to encourage greater posturing and longer speeches for public consumptiqL Others think committee action is hindered by the necessity of observing formal procedures. One committee, which held open mark-up sessions In the past but not In 1971, found that the open meetings usually attracted more lobbyists than public.
Open mark-up sessions: The House Education and Labor Committee., whieU. had the lowest over-all secrecy score of House committees holding more than 100








meetingF4 also led In the open business meeting category. Of those specified as
business sessions, the committee closed its doors six out of 60 times.
The House Education and Labor Committee's practice of opening mark-up
sessions to the public began during heated debate over anti-poverty legislation in 1967, the year Rep. Carl D. Perkins (D-Ky.) became chairman. Perkins opened the sessions when Republican committee members prevented action by boycotting meetings, while keeping someone in attendance to protest that a quorum was not
present.
At that time Perkins stated: "If they (the Republicans) want to kill this bill
then they're going to have to do it on the floor, out in the open and for the record.
We're not going to let them do it behind closed doors." (1967 Weekly Report P.
2121)
. N Donald M. Baker, chief clerk of the House Education and Labor Committee,
told Congressional Quarterly that he did not think open meetings had hampered
committee proceedings and called it "a very good rule."
House Interior and Insular Affairs opened 30 of its 55 mark-up sessions. The
Subcommittee on Territorial and Insular Affairs began marking up in open session in 1971 under the direction of its new chairman, Rep. Phillip Burton (D
Calif.). Burton also serves on the Education and Labor Committee.
Another committee to mark'up in open session in 1971 was House Post Office
and Civil Service. The committee voted to open these sessions as a result of the
Legislative Reorganization Act of 1970.
Committee Hearings: The 1970 Legislative Reorganization Act contained provisions concerning hearings. It required that House and Senate committees, with the exceptions of the Senate Appropriations and House Rules Committees, announce the date, place and subject of hearing s at least one week in advance, unless the committee finds good cause for beginning them earlier. Provision for radio and television coverage of open committee meetings was contained in the legislation. Prior to the passage of the act, such coverage was permitted in the Senate
but not in the House.
The reorganization law provided for the opening of more hearings. It stipulated
that Senate hearings would be open except when the committee determines that testimony may relate to national security, may tend to reflect adversely on the character or reputation of an individual or may divulge matters deemed confidential under other provisions of law or government regulation.

GROUND RULES
Statistics in Congressional Quarterly's open-closed committee study were dei. rived primarily from information published in the daily digest section of the
Congremional Rocord, the official journal of Senate and House proceedings.
Section 221of the Legislative Reorganization Act of 1916 (now Section 905, Title
44, United States Code) required:
"The Joint Committee on Printing -shall provide for printing in the daily
Record the legislative program for the day together with a list of congressional committee meetings and hearings and the place of meetings and subject matter.
It shall cause a brief r6sum-&_ of congressional activities for the previous day to
be inco.Lporated in the Record. . ."
In practice, however, not all committee meetings were listed in the Record.
Committees used different criteria as to what constituted a meeting. Some did not report their meetings regularly to the Record; some said they reported their
meetings but they were not carried in the Record.
Open me'etings followed by closed meetings are counted twice-once in each
category. Joint meetings of separate committees or subcommittees are counted as one meet* for each. A meeting of a subcommittee is counted as a meeting of
the full committee.
The tabulations eXclude meetings when Congress was not in regular session;
meetings:, out9ide f, Washington, D-Q ; meetings of conference committees to reconcile:, Onfiktin Senate and -House versions of bills; nformal meetings of the Houw Rules Committee t6, coA ider sending legislation to the floor (but
Rulea'Vomxnlfte e meettapfor other purposes are included).
Meeti ti. _(ou e proWliations Committee were not always renf beld Oy the i
p6ite&j o theA&-6rx1. Thix,-CQ Wly f6i the Approp-riations Committee was made fromAU0cord lift. of fteetings Wheduled. The Senate Select Committee on Standards oo 09nduct did,::n6t-report_ its meetings, all closed, to the Record nor state
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[From the Congressioual Record---Senate, January 9, 1973]
(S 37" 377)
INTRoDucno.-i oF S. 260 By SXNATOR LAwTow CHmEs
S. 260. A bill to provide that meetings of Government agencies and of congressional committees shall be open to the public, and for other purposes. Referred to the Committee on Government Operations.
GOVERNMENT IN THE SUNSHINE ACT
Mr. CHiLEs. Mr. President, I ask unanimous consent that a copy of the lezislation being introduced and a section-by-section analysis be sprint d in full at the end of my statement.
ThePRESIDING OFTICER.Without objection, it is so ordered.
[See exhibits 1 and 2.1
Mr. CHmEs. Mr. President, Supreme Court Justice Louis D. Bran deis once wrote:
Publicity is justly commended as a remedy for social and industrial disease. Sunlight is said to be the beat disinfectant and electric light the most efficient policeman.
I believe,.Justice Brandeis could just as well have applied these remedies to the operation of our Government. Democratic self-government and informed citizenry just naturally go hand in hand, making essential the conduct of public business in the open, "in the sunshine." Only with such openness can the public judge and express, through its vote or voice, whether governmental decisions are just and fair.
When I first came to the Senate in 19711 was very disturbed by the amount of public business T found being conducted behind closed doors and by the attitude of secrecy I saw in our Federal Government agencies. I am not surprised that people are suspicious of our motives and are losing confidence in their government when they are shut out of the decisionmaking process.
Near the end of the 92d Congress I introduced a bill, S. 3881, the Federal Government in the Sunshine Act-which sought to assure the openness of our governmental process and to restore public confidence in those processes.
Tt sought to do this through a simple requirement: All meetings of Federal agencies and congressional committees shall, subject to certain exemptions, be open to the public. Citizens would have the right to attend meetings in which they had a personal interest, and news media and other interested groups would have accom which would insure a broader dissemination of information on public affairs. The proposal provided for open meetings of all Federal governmental agencies ex cept the courts and the military.
I was pleased to see that legislation was approved last Congress by a Senate-House conference of which I was a member, which would open up meetings of the multitude of so-called advisory commissions.
(63)




64

Our effort to open up government to the people should clearly not be a partisan issue-and the list of Senators cointroducing the redraft of my bill, S. 38819 this mornin),r reflects that bipartisan support.
I am deeply committed to tte idea of government in the sunshinebut not wedded to the specific language of S. 3881. S. 3881 provided for certain exemptions to the openness requirement, but I knew these exemptions would have to be turther specified. I knew, too, that the procedure for implementation of the sunshine law needed to be more specifically outlined. And so while the redmi ft we are introducing this morning retains the same concepts as S. 3881, it is somewhat more lengthy various exemptions from the open meeting requirement for congressional committees and multimember administrative agencies have been made more specific; and committees and ageAcies, are required to keep transcripts of all meetings and make such transcripts publicly available except for the confidential portions falling within one of the specific exemptions.
Senator Ribicoff chairman of the Executive Reorganization Subcommittee, has indicated that hearings will be held on this proposal early this session. And I am confident this whole issue will be completely gone into and thoroughly studied.
Joining with me in the introduction of this proposal are Senators Clark, Cook, Cranston, Hart, Humphre Mathias, Metcalf, Mondale, Nelson, Packwood, Proxmire, Roth, 9-tafford, Stevenson, Tunney, and Weicker. As I stressed last year-I sincerely hope this whole area will be completely gone into and thoroughly studied. And we must start now to expose our governmental process to the fullest extent possible. I believe it i's time to open the doors and windows and let the disinfecting sunshine in. Our efforts to open up Government to the people can only lead to better lawmaking and greater public confidence in our governmental system.













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P 69

5
I meeting, a written plantationn of its action. The vote of 2 each oommittee member participating in each such vote 3 shall be reoorded and published and no proxies shall be
4 allowed.
5 (b) F*ch standing, select, or special committee or sub6 committee of the Senate shall make public announcement of 7 the date, place, and subject matter of each meeting (whether 8 open or closed to the public) at least one week before such 9 meeting unless the committee or subcommittee determines by
10 a vote of the majority of its members that committee business 11 requires that such meeting be called at an earher date, in 12 which case the committee shall make public ann)uncement 13 of the date, place and subject matter of such meeting at the

14- earliest practicable oppo4unity.
15 is (c) A complete transcript, including a list of all per16 sons attending and their affiliation, .shall be made of each 17 meeting of each standing, select, or special commi or sub18 committee (whether open or closed to the public). Except as 19 provided in subsection (d) of this section, a copy of each such 2() hwiscript shall be made available for public, inspection within 21 seven days of each such meeting, and additional copies of any 22 Unnscript shall be finmished to any person at the actual cost
23 of duplication.

24 (d) In the case of meetings closed to the public pur2g, suant to subsection (a) of this mtion, the committee or sub-




70

6
i eommittee may delete from the copies of transcriptal tW are 2 required to be made available or furnished to the puMk. pur3 squant to sabsection (c) of this section, those -portions whieh 4 it determines by, vote of the majority of the committee or 5 subcommittee consist of materials specified in paragraph 6 (1) 1 (2) 9 (3) (4), or (5) of subsection (a) of this see7 tion. A separate vote of the committee or subcommittee shall 8 be taken with respect to each such transcript. The vote of 9 each committee or subcommittee member participafing in 10 each such vote shall be recorded and published, and no 11 proxies -,hall be allowed. In place of each portion deleted 12 from copies of the transcript made available to the public, 13 the committee or subcommittee shall supply a written expla14 nation of why such portion was deleted, and a summary of the 15 substance of the deleted portion that does not itself disclose 1 f) information specified in paragraphs (1), (2),, (3), (4); 17 (5) of subsection (a). The committee or sub6mmittee shall 18 maintain a complete copy of the transcript of each meeting 19 (including those portions deleted from copies made avail20 able to the public), for a period of at least one year after such. 21 meeting.

22 14 (e) A point of order may be raised in the Smate
23 against any committee vote to close a meeting to th6 public 24 pursuant to subsection (a) of this section, or against any 25 committee or subcommittee vote to delde from the pabfidy,





71

7
1 available copy it portion of a meeting transcript pursuant 2 to subsection (d) of this section, by committee or subcom3 mittee members comprising one-fourth, or more of the total 4 membership of the entire committee or subcommittee, as 5 the case may be. Any such point of order shall be raised 6 in the Senate within five legislative days after the 'vote 7 against which the point of order is raised, and such point 8 of order shall be a matter of highest personal privilege. 9 Each such point of order shall immediately be referred to 10 a Select Committee on-Meetings consisting of the President pro tempore, the 'leader of the majority party, and 12 the leader of the minority party. The select committee

'shall examine the co lete verbatim transcript of the 14 meeting in question and shall rule whether the vote to close 15 the meeting wa's in accordance with subsection (a) of this 16 section, or whether the vote to delete a portion or portions e copies of the meet' kr nscript
17 from publicly available ing a
18 was *in accordance with subsection (d) of this section, as the 19 case may be. The select committee should report to the 20 Senate within five calendar days (excluding days where 21 the' Senate is not in session) a resolution contai ing its find 22 ings. If the Senate adopts a 'resolution finding that the 23 commi. ee vote in question was not in accordance with the 24 relevant S'ubsection, it shall direct that there be made p4b25 licly available the entire transcriptlof the meeting improp




72

8
I erly dosed to the public or the,, portion or portions of any 2 meeting Uwwoript -improperly deleted from the publicly
3 available copy, as the cue may be.
4 (1) The Select Committee on Meetings shall not be
5 subject to the provisions of subsection (a), (b), (c), or (d)
6 of this section."
7 (b) Subsection (a) of subsection 242 of the Legislative
8 Reorganization Act of 1970 is repealed. 91 (c) Title I of the table of contents of the Legislative Re10 organization Act of 1946 is amended by inserting immedi11 ately below item 133B the following:
"133C. Open senate committee meetings.",
12 SEc. 102. Clause 2.7 (f) (2) of rule XI of the Rules of
13 the Hcuse of Representatives is amended to read as follows: 14 (2) (A) Each meeting of each standing, select, or spe.15 cial committee or subcommittee, including meetings to con16 duct hearings, shall be open to the public: Provided, That a 17 portion or portions of such meetings may. be closed to the .18 public if the committee or subcommittee, as the case may be, 19 determines by vote of a majority of the members.commi e 2o. or subcommi ee present that the matters to be discussed or 2jL the testimony to be taken at such portion or portions-22 (i) will probably disclose matters necessary to be
23 kept secret in the interests of national security or the con-




73

9
fidential oondact of the foreign relations of the United
2 States;

(nii) will reI&W solely to matters of committee staff
4 personnel or interiW staff nffAMent or procedure;
5 (Inii) will tend to charge with crime or misconduct,

or to disgrace, injure the professional standing or other7 wise expose to public contempt of obloquy any individ8 ual, or will represent a clearly unwarranted invasion of
9 the privacy of any'individual: Protided, That this sub10 section shall not apply to any government or officer or
11 employee with respect to his official duties or employ12 ment: And provided further, That as applied to a wit13 ness at a meeting to conduct a hearing, this subsection

14 shall not apply unless the witness requests in writing
15 that the hearing be closed to the public;
16 (iv) will probably disclose the identity of any in17 former or law enforcement agent or of any information

18 relating to the invest* ation or presecution of a criminal
19 offense that is required to be kept secret in the interests
20 Of effective law enforcement; or
21 (v) will disclose information relating to the trade
22 secrets of financial or commercial information pertain23 ing specifically to a given person where2-4 (1) the information has been obtained by the





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I (C) A ooniplete transcript, including a list of &11 per2 sons attending and their affiliation, shall be made of each 3 meeting of each standingg, select, or special committee or 4 subcommittee meeting (whether open or closed to the pub5 lie). Exeept as provided in paragraph (D), a copy of each 6 such transcript shall be made available for public inspection 7 within seven days of each such meeting, and additional copies 8 of any transcript shall be furnished to any person at the actual
9 cost of duplication.
10 (D) In the case of meetings closed to the public pur11 suant to subparagraph (A), the committee or subcommittee 12 may delete from the copies of transcripts that are required 13 to be made available or furnished to the public pursuant to 14 subparagraph (C), portions which it determines by vote of 15 the majority of the committee or subcommittee consist 16 of material specified in clauses (i), (ii), (Uiii), (iv), or (v) 17 of subpamgraph (A). A separate vote of the committee

18 or subcon-unittee shall b e taken with respect to each tra.n19 script. The. vote of each committee or subcommittee mem2o ber participating in each such vote shall be recorded and 2-1 published, and'no proxies shall be allowed. In place of each 22 portion deleted from. copies of the transcript made available 23 to the public, the committee shall supply a written ex24 plantation of why such -portion was deleted -and a summary of 2S the, substance of thedeleted portion. that does not. itself dis-




76

12
(08) 060
I close information specified in subsection (i), U M
2 (iv) or (v) of subsection (a) The committee or sub3 committee shall maintain a complete copy of the transcript of 4 each meetmig (including those portions deleted from copies 5 made available to the public), for a period of at least one
6 year after such meetings.
C)-
7 (E) A point of order may be raised against any com8 mittee or subconunittee vote to close a ineeting to the public 9 pursuant to subparagraph (A), or against any committee 10 or subcominittee vote to delete from the publicly available
copy a portion of a meeting transcript and pursuant to sub12 paragraph (D), by conunittee or subcommittee members 1-
comprising one-fourth or more of the total membership of 14 the entire canimittee or subcommittee. Any such point of 15 order must be raised before the entire House within five 16 legislative days after the Yote against which the point of 1 F7 order is raised, and such point of order shall be a matter of 18 highest privilege. Each such point of order shall immediately 19 be referred to a Select Committee on Meetings consisting 20 of the Speaker of the House of Representatives, the major21 ity leader, and the minority leader. The select committee 22 shall report to the House within five calendar dkys (exclud23 ing days where the House is not in session) a resolution 24 containing its findings. If the House adopts a resolution 25, finding that the committee vote in question was not in accord-





77

13
1 &nee with the relevant subsection, it shall direct that there 2 be umde publicly available the entire transcript of the meet3 iug improperly closed to the public or the portion or por4 tions of any meeting transcript improperly deleted from

5 the publicly available copy.
6 (F) The Select Commi e on Meetings shall not be
7 subject to the provm'*ons of subparagraph (A), (B), (C),
8 or (D) It
9 Sm. 103. CoNFBRBNcE' Commiwms.-The Legisla10 tive Reorgwiization Act of 1946 is amended by inserting 11 after section. 133 (c) as aAded by section 101 (3) of this 12 Act the following new 'section: 13 "OPEN OONFTRBNCB COMMITTEE MEETINGS

I t "SEc. 133D. (a) Each meeting of a committee of con15 ference shaJI be open to the public: Provided, That a portion 16 or portions of such meetings may be closed to the public if 17 the commi e determines by vote of a majority of the mem18 bers of the committee- present that the matters to be discussed 19 or the testimony to be taken at such portion or portions20 (1) will disclose matters 'necessary to be kept secret
21 in the interests of national sectirity or the confidential
22 eonduct of the foreign relations of the United States;
23 2) will relate solely'to matters of conanitfee staff
24 ;personnel or internal staff management or procedure:
25 (3) will tend to charge with crime or misconduct.,







144













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81

17
either Hotise within five le islative days after tlLL' ,ote 2 against which the point of order is raised, and such point 3 of order sh&U be a matter of highest personal privilege. Each 4 such point of order shall immediately be referred to it Select 5 Conference Committee on Meetings consisting of the Presi6 dent pro teinpore of the Senate, the Speaker of the House 7 of Representatives, and the majority and minority leaders 8 from each House. The select committee shall examine the 9 complete verbatim transcript of the meeting in question 10 and shall rule whether the vote to close the meeting was 11 in accordance with subsection (a) of this section or whether 12 the vote to delete a portion or portions from publicly available copies of the meeting transcript was in accordance AN-ith 14 subsection (d) of this section, as the case may be. The 15 select committee reports to both Houses a concurrent reI(i solution within five calendar days (excluding days where 17 either House is not in session) a resolution containing its 18 findings. If both Houses adopt such a. resolution finding 19 that the committee vote in question was not in accordance 20 -%vith the relevant subsection, they shall direct that t1tere be A.4j made publicly available the entire transcript of the ineeting
improperly closed to the public or the portion or portions Of anymeeting transcript improperly deleted from the pub24 licly available copy, as the case may be. 25 (f) The Select Conference Committee on Meetings







18
1 shall not be sabject to the provisions of subsection (a) (b)
2 (c) or (d) of this section."

3 (b) Title I of the table of contents of the Legislative Re4 orgartization Act of 1946 is amended by inserting immedi5 ately below itein 133C, as added by section 101 (c) of this

6 Act, the following:
11133D. Open conference conunittee meetings.".

7 TITLE 11-AGENCY PROCEDURES
8 SFx. 201. (a) This section applies, according to the
9 provisions thereof, to any agency, as defined in section 10 551 (1) of title 5, United States Code, where the body coin11 uprising the airency consists of two or more members. Except 12 as provided in subsection (b), all meetings (including meet13 ings to conduct-hearinffs). of such agencies at which official 14 action is considered or discussed shall be open to the public. 15 (b) Subsection (a) shall not apply to any portion or,

16 i)ortions of an agency meeting where the agency determmies
-17 by vote of a majority of its entire membership18 (1) will probably disclose niatters necessary to be
19 kept secret in the ititerests of national security or the

20 confidential conduct of the foreigwrelations of the United
21 States;

22 (2) will relate WHY to individual ngeiiey persoillic'.1
23 or to hiterual agenev office iiiaii-tigment aad procedures
24 or financial auditing;





83



1 (3) will tend to charge with crime or misconduct,
2 or to disgrace, injure the professional standing or other3 wise expose to public contempt of obloquy any individ4 ual, or will represent at clearly unwarranted invasion of
5 the privacy of any individual: Provided, That this sa-b6 section shall not apply to any government or officer or
7 employee with respect to his official duties or employ8 ment: And provided further, That as applied to a wit9 ness at a meeting to conduct a hearing, this subsection
10 shall not apply unless the witness requests in writing that
11 the hearing be closed to the public;
12 (4) will probably disclose the identity of any in13 former or law enforcement agent- or of any information

14 relating to the investigation or prosecution of a criminal
15 offense that is required to be kept secret in the interests
16 of effective law enforcement;
17 .(5) will disclose information relating to the trade

18 secrets or financial or commercial information pertaining
19 specifically to a given person where20, (A) the information has been oWained by the
21. Federal Government on a, confidential basis other

22 than through an application by such person for a
23 specific government financial or other benefit- and
24 (B) Federal statute requires the information to




84

20
I be kept confidential by goveniment officers and em2 ployees, a.nd
3 (C) the information is required to be kept secret
4 in order to prevent undue injury to the competitive,
5 position of such persons;
66 (6) will relate to the conduct or disposition (but
7 not the initiation of a case of adjudication governed by
8 the provisions of the first paragraph of seetion 5M (a)
9 of title 5, United States- Code, or of subRection (1),
10 (2), (4), (5), or (6) thereof.

11 A separate vote of the agency members shall be taken with 12 respect to each agency ineeting that is closed.to the. public 13 pursuant to this subsection. The vote of each agency mem14 ber participating in such vote shall be recorded and published 15 and no proxies shall be allowed. In the ense of any closing of 16 position of a meeting to the public pursuant to this subsection, 17 the agency shall promptly publish an explanation of its 18 action.
19 (c) Each agency shall make public announcement of
20 the date, place, and subject matter of each ineeting at which 21 official action is cons-idered or discussed (whether open or 22 closed to the public) at least, one week before each meeting 23 unless the agency determines by a vote of the majority of 24 its members that agency business, requires that such meetings 25 be called at an earlier date' *in which Itost. thA Mency shall





85

21
1 make public announcement of the date, place, and sub2 ject matter of such meeting at the earliest practicable
3 opportunity.
4 (d) A complete transcript, including a list of all per5 sons attending and their affiliations,- shall be made of each 6 meeting of each agency at which official action is considered 7 or discussed (whether open or closed to the public). Ex8 cept as provided in subsection (e) of this section a copy of 9 each such meeting shall be made available to the public 10 for inspection, and additional copies of any transcript shall
-11 be furnished to any person at the actual cost of duplication. 12 (e) In the case of meetings closed to the public pur13 suant to subsection (b) of this section, the agency may delete 14 from the copies of transcripts made available or furnished to 15 the public pursuant to subsection (d) of this section those 16 portions, which the agrency determines by vote of a majority 17 of its membership consists of -materials specified in paragraph 18 (1) (2) (3) (4), or (5) of subsection (b) of thi's 19. section. A separate vote of the agency shall be taken with 20 respect to each transcript. The vote of each agency mem21 ber participating in such vote shall be recorded a nd pu&22 lisbed, and. no proxies shall be allowed. In place of. each 23 portion deleted from copies of the meeting transcript made
availiblo to the, public, 'the agency shall supply a written 25 explanefion of why such portion was deleted and W'FAImmary




86
94
.ft
I of the substance of the deleted: portion that does not itself 2 disclose information specified in paragraph (1), (2), (3), 3 (4), or (.15) of subsection (a). The agencysball maintain 4 a complete verbatim copy of the transcript of each meeting
-5 (including those portions deleted from copies made available 6 to the public) for a period of at least two years after such
7 meeting.
8 (f) Each agency subject to- the requirements of this
9 section shall., within one hundred and eighty days after the 10 enactment of this Act, following published notice in the 11 Federal Register of at least thirty days and opportunity 12 for written comment -by interested persons, promulgate regur .13 lations to implement the requirements of subsections (a) 14 through (e) inclusive of this section. Any citizen or person 15 resident in the United States may bring a proceeding in 16 the United States Court of Appeals for -the District of Co17 lumbia Circuit18 (1) to require an agency to promulgate such regu19 lations if such agency has not promulgated such regw20 IsAions within the time period specified herein; or
21 (2) to set aside agency regulations issued pursur
22 ant, to this. subsection that are not. in accord with the

23 requirements of subsections. (a) through (a) .of this
a section inolusive, and to require the prowulption of
25 reguktions that ore in accord.with..such. sub"Osions.










48 62

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89

25

1 for the disposition of ex parte matters as authorized by

2 law3 "(1) no interested person (including members or
4 employees of other government agencies) shall make or
5 cause to be made to any member of the agency in ques6 tion, hearing examiner, or employee who is or may be
7 involved in the decisional process of said proceeding, an
8 ex parte communication relevant to the events of the
9 proceeding;
10 (2) no member of the agency in question, hearing
11 examiner, or employee who is or may be involved in the
12 decisional process of such proceeding,* shall make or
13 cause to be made to an interested person an ex parte

14 communication relevant to the merits of the proceeding;
15 (3) a member of the agency in question, hearing
16 examiner, or employee who is or may be involved in the
17 decisional process of said proceeding, who receives a

18 communication in violation of this subsection sball place
19 in the public record of the proceeding20 (A) written material submitted in violation of
21 this subsection or

22 (B) memorandums stating the substance of
23 all oral communications submitted in violation -of
24 this subsection; or





80-459 0 77 7




90

26
1 (C) responses to the materials: described in
2 subparagraphs (A) and (B) of this subsection;
3 (4) upon receipt of a communication in violation
4 of this subsection from.a party to any -proceeding to
5 which this section applies, the hearing or em6 ployee presiding at the hearings may, to the extent
7 consistent with the interests of justice and the policy
8 of the underlying statutes, require the persons or party to
9 show cause why his claim or interest in the proceeding
10 should not be discussed, denied, disregarded, or other11 wise adversely. affected by virtue of such violation; and
12 (5) the prohibitions of this- subsection shall apply
13. at such time as the agency shall designate, having due

14 regard for the public interest in open deci 9
15 by agencies, but in no case, shall they apply later than
16 the time at which a proceeding is noticed for hearing
17 or opportunity for participation by interested persons
18 unless the person is responsible for the communication
19 has knowledge that it will be noticed, in which case
20 said prohibition shall apply at the time of his acquisition
21 of such knowledge.
22 (c) Each agency subject to the requirements of this
23 section shalL within one hundred and eighty days after the 24 enactment of this on, following publMed notice in 25 the Federal Register of at least thirty days and opporta-