Title 29—Labor--Volume 1
PART 1612—GOVERNMENT IN THE SUNSHINE ACT REGULATIONS
§ 1612.1   Purpose and scope.
This part contains the regulations of the Equal Employment Opportunity Commission (hereinafter, the Commission) implementing the Government in the Sunshine Act of 1976, 5 U.S.C. 552b, which entitles the public to the fullest practicable information regarding the decision-making processes of the Commission. The provisions of this part set forth the basic responsibilities of the Commission with regard to the Commission's compliance with the requirements of the Sunshine Act and offers guidance to members of the public who wish to exercise any of the rights established by the Act.
§ 1612.2   Definitions.
The following definitions apply for purposes of this part:
(a) The term agency means the Equal Employment Opportunity Commission and any subdivision thereof authorized to act on its behalf.
(b) The term meeting means the deliberations of at least three of the members of the agency, which is a quorum of Commissioners, where such deliberations determine or result in the joint conduct or disposition of official agency business (including conference calls), but does not include:
(1) Individual members' consideration of official agency business circulated to the members in writing for disposition by notation or other separate, sequential consideration of Commission business by Commissioners,
(2) Deliberations to decide whether a meeting or portion(s) of a meeting or series of meetings should be open or closed.
(3) Deliberations to decide whether to withhold from disclosure information pertaining to a meeting or portions of a meeting or a series of meetings, or
(4) Deliberations pertaining to any change in any meeting or to changes in the public announcement of such meeting.
(c) The term member means each Commissioner of the agency.
(d) The term entire membership means the number of members holding office at the time of the meeting in question.
(e) The term person means any individual, partnership, corporation, association, or public or private organization.
(f) The term public observation means attendance at any meeting open to the public but does not include participation, or attempted participation, in such meeting in any manner.
§ 1612.3   Open meeting policy.
(a) All meetings of the Commission shall be conducted in accordance with the provisions of this part.
(b) Except as otherwise provided in § 1612.4, every portion of every meeting shall be open to public observation. Public observation does not include participation or disruptive conduct by observers. Any attempted participation or disruptive conduct by observers shall be cause for removal of persons so engaged at the discretion of the presiding member of the agency.
(c) When holding open meetings, the Commission shall provide ample space, sufficient visibility, and adequate acoustics for persons in attendance at the meeting.
(d) Observers may take still photographs and use portable sound recorders which do not require electrical outlets. Persons may take pictures only at the beginning of a meeting and may not use flash equipment. Permission to use non-battery operated sound recorders and visual recorders must be sought reasonably in advance of a meeting. Such request must be made in writing to the Commission through the Office of the Executive Secretariat. The Commission may permit such activities to be conducted under specified limitations which insure proper decorum and minimum interference with the meeting. In all cases, audio or visual recording shall not disrupt or otherwise impede the meeting.
§ 1612.4   Exemptions to open meeting policy.
Except in a case where the agency finds that the public interest requires otherwise, the provisions of § 1612.3 shall not apply to any meeting or portion of a meeting or portion of a meeting where the agency determines that an open meeting or the disclosure of information from such meeting or portions of a meeting is likely to:
(a) Disclose matters that are (1) specifically authorized under criteria established by an Executive Order to be kept secret in the interests of national defense or foreign policy and (2) in fact properly classified pursuant to such Executive Order;
(b) Relate solely to the internal personnel rules and practices of the agency;
(c) Disclose matters specifically exempted from disclosure by statute (other than the Freedom of Information Act, 5 U.S.C. 552), provided that such statute (1) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (2) establishes particular criteria for withholding or refers to particular types of matters to be withheld;
(d) Disclose trade secrets and commercial or financial information obtained from a person and privileged or confidential;
(e) Involve accusing any person of a crime or formally censuring any person;
(f) Disclose information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy;
(g) Disclose investigatory records compiled for law enforcement purposes, or information which if written would be contained in such records, but only to the extent that the production of such records or information would (1) interfere with enforcement proceedings, (2) deprive a persons of a right to a fair trial or an impartial adjudication, (3) constitute an unwarranted invasion of personal privacy, (4) disclose the identity of a confidential source, and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source, (5) disclose investigative techniques and procedures, or (6) endanger the life of physical safety of law enforcement personnel;
(h) 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;
(i) Disclose information the premature disclosure of which would be likely to significantly frustrate implementation of a proposed agency action, except where the agency has already disclosed to the public the content or nature of the disclosed action, or where the agency is required by law to make such disclosure on its own initiative prior to taking final agency action on such proposal; or
(j) Specifically concern the agency's issuance of a subpoena, or the agency's participation in a civil action or proceeding, an action in a foreign court or international tribunal, or an arbitration, or the initiation, conduct, or disposition by the agency of a particular case of formal agency adjudication pursuant to the procedures specified in 5 U.S.C. 554 or otherwise involving a determination on the record after opportunity for a hearing.
§ 1612.5   Closed meeting procedures: agency initiated requests.
(a) Any member of the agency, the Legal Counsel, or any other Commission official submitting an agenda item for the subject meeting may request that any meeting or portion thereof be closed to public observation for any of the reasons provided in § 1612.4 of this part by submitting a request in writing to the Commission through the Office of the Executive Secretariat no later than fourteen (14) calendar days prior to the meeting.
(b) Upon receipt of any request made under paragraph (a) of this section, the Executive Secretary shall submit the request to the Legal Counsel for certification in accordance with § 1612.9 of this part.
(c) No later than seven (7) calendar days prior to the scheduled meeting the members of the agency shall, upon consideration of the request submitted and consideration of the certified opinion of the Legal Counsel, determine by recorded vote whether to close the meeting or portion of the meeting to public observation. The members may vote less than seven days prior to the scheduled meeting where:
(1) A majority of the members of the Commission determines by recorded vote that agency business requires that any such meeting or series of meetings be held at an earlier date.
(2) A meeting is closed under the Commission's regulation as set forth in § 1612.13(a) of this part.
(3) A meeting is closed pursuant to a request made under § 1612.6 of this part and submitted less than seven days prior to the meeting.
(4) There is a need to change the subject matter or the determination to open or close a meeting previously announced.
(d) The Commissioner shall, at the same time, vote on whether to withhold any information pertaining to the meeting and otherwise required to be announced (§ 1612.7(a)(3)) or made publicly available (paragraphs (f) (2) and (3) of this section).
(e) A meeting, portion of a meeting, or series of meetings may be closed to public observation only when a majority of the entire agency membership votes to take such action. Information pertaining to a meeting, portion of a meeting or series of meetings otherwise required to be announced (§ 1612.7(a)(3)) or made publicly available (paragraphs (f) (2) and (3) of this section) shall be withheld only when a majority of the entire agency membership votes to take such action.
(f) With respect to each vote taken on whether a meeting should be open or closed, the agency shall, within one day of such vote, make publicly available the following information:
(1) A written copy of the vote of each participating Commission member on the question.
(2) A written explanation of Commission action closing a meeting or portions thereof, and
(3) The name and affiliation of any persons who are expected to attend a closed meeting.
(g) The agency shall, within one day, make publicly available the vote of each Commission member on whether or not to withhold any of the information described in paragraphs (f) (2) or (3) of this section.
(h) A separate vote shall be taken for each meeting proposed to be closed to the public and with respect to any information proposed to be withheld from the public. However, a single vote may be taken with respect to a series of meetings proposed to be closed to the public, and with respect to information concerning such series of meetings, if each meeting involves the same particular matters and is scheduled to be held no later than thirty (30) calendar days after the first meeting in the series.
§ 1612.6   Closed meeting procedures: request initiated by an interested person.
(a) Any person as defined in § 1612.2 of this part whose interest may be directly affected by a portion of a meeting may request that the agency close that portion of the meeting to the public for any of the reasons listed in § 1612.4(e), (f) or (g).
(b) Any person described in paragraph (a) of this section who submits a request that a portion of a meeting be closed, shall submit such request to the Chairman of the agency at the following address: the Equal Employment Opportunity Commission, 131 M Street NE., Washington, DC 20507. Such person shall state with particularity that portion of a meeting sought to be closed and the reasons for such request.
(c) The Chairman, upon receipt of any request made under paragraph (a) of this section, shall furnish a copy of the request to:
(1) Each member of the agency.
(2) The Legal Counsel for certification in accordance with § 1612.9 of this part.
(d) Any member of the agency may request agency action upon such request.
(e) The Commission shall, upon the request of any one of its members and consideration of the certified opinion of the Legal Counsel, determine by recorded vote whether to close such meeting or portion thereof.
(f) The Chairman of the Commission shall promptly communicate to any person making a request to close a meeting or portion of a meeting under this section the agency's final disposition of such request.
§ 1612.7   Public announcement of agency meetings.
(a) Public announcement of each meeting by the agency shall be accomplished by recorded telephone message at telephone number (202) 921-2750, and by posting such announcements on the Commission's public Web site located at http://www.eeoc.gov not later than one week prior to commencement of a meeting or the commencement of the first meeting in a series of meetings, except as otherwise provided in this section, and shall disclose:
(1) The time of the meeting.
(2) The place of the meeting.
(3) The subject matter of each portion of the meeting or series of meetings.
(4) Whether any portion(s) of a meeting will be open or closed to public observation.
(5) The name and telephone number of an official designated to respond to requests for information about the meeting.
(b) Where a meeting is closed to the public, the agency may withhold and not announce the information specified in paragraph (a)(3) of this section, if and to the extent that it finds that such action is justified under § 1612.4. Information shall be withheld only by a recorded vote of a majority of the entire membership of the agency.
(c) The announcement described in paragraph (a) of this section may be accomplished less than one week prior to the commencement of any meeting or series of meetings where:
(1) A majority of the members of the Commission determines by recorded vote that agency business requires that any such meeting or series of meetings be held at an earlier date.
(2) A meeting is closed under the Commission's regulation as set forth in § 1612.13(a) of this part.
(3) A meeting is closed pursuant to a request made under § 1612.6 of this part and submitted less than seven days prior to the meeting.
(4) There has been a change in the subject matter or determination to open or close a meeting previously announced.
(d) Immediately following any public announcement accomplished under the provisions of this section, the agency shall submit a notice for publication in the Federal Register disclosing:
(1) The time of the meeting.
(2) The place of the meeting.
(3) The subject matter of each portion of each meeting or series of meetings.
(4) Whether any portion(s) of a meeting will be open or closed to public observation.
(5) The name and telephone number of an official designated to respond to requests for information about the meeting.
§ 1612.8   Public announcement of changes in meetings.
(a) The agency is required to make a public announcement of any changes in its meeting or portion(s) thereof. If, after the announcement provided for in § 1612.7, the time or place of a meeting is changed or the meeting is cancelled, the agency will announce the change at the earliest practicable time. The subject matter or the determination to open or close the meeting may be changed only if (1) a majority of the entire membership of the agency determines by recorded vote that agency business so requires and that no earlier announcement of the change was possible and (2) the agency publicly announces the change and the vote of each member upon such change at the earliest practicable time.
(b) Immediately following any public announcement of any change accomplished under the provisions of this section, the agency shall submit a notice for publication in the Federal Register disclosing:
(1) The time of the meeting.
(2) The place of the meeting.
(3) The subject matter of each portion of each meeting or series of meetings.
(4) Whether any portion(s) of a meeting is open or closed to public observation.
(5) Any change in paragraphs (b) (1), (2), (3), or (4) of this section.
(6) The name and telephone number of the official designated to respond to requests for information about any meeting.
§ 1612.9   Legal Counsel's certification in closing a meeting.
(a) Upon any proper request made pursuant to this part, that the agency close a meeting or portion(s) thereof, the Legal Counsel shall certify in writing to the agency, whether in his or her opinion the closing of a meeting or portion(s) thereof is proper under the provisions of this part and the terms of the Government in the Sunshine Act (5 U.S.C. 552b). If, in the opinion of the Legal Counsel, a meeting or portion(s) thereof is proper for closing under this part and the terms of the Government in the Sunshine Act, his or her certification of that opinion shall cite each applicable particular exemption of that Act and provision of this part.
(b) A copy of the certification of the Legal Counsel as described in paragraph (a) of this section together with a statement of the presiding officer of the meeting setting forth the time and place of the relevant meeting or meetings, and the persons present, shall be maintained by the agency in a public file.
§ 1612.10   Recordkeeping requirements.
(a) In the case of any meeting or portion(s) thereof to be closed to public observation under the provisions of this part, the following records shall be maintained by the Executive Secretary of the agency:
(1) The certification of the Legal Counsel pursuant to § 1612.9 of this part;
(2) A statement from the presiding officer of the meeting or portion(s) thereof setting forth the time and place of the meeting, and the persons present;
(3) A complete electronic recording adequate to record fully the proceedings of each meeting closed to the public observation, except that in a meeting closed pursuant to paragraph (h) or (j) of § 1612.4, the agency may maintain minutes in lieu of a recording. 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 therefor, including a description of each of the views expressed on any item and the record of any roll call vote. All documents considered in connection with any item shall be identified in the minutes.
(b) If the agency has determined that the meeting or portion(s) thereof may properly be closed to the public, the electronic recording or minutes shall not be made available to the public until such future time, if any, as it is determined by the Commission upon request, that the reasons for closing the meeting no longer pertain; Provided, however, that any separable portion of a recording or minutes will be made promptly available to the public if that portion does not contain information properly withheld under § 1612.4.
(c) The agency shall maintain a copy of the electronic recording or minutes for a period of two years after the meeting, or until one year after the conclusion of the proceeding to which the meeting relates, whichever occurs later.
§ 1612.11   Public access to records.
All requests for information shall be submitted in writing to the Chairman of the agency. Requests to inspect or copy the electronic recordings or minutes of agency meetings or portions thereof will be considered under the provisions of § 1612.4 of this part.
§ 1612.12   Fees.
(a) Records provided to the public under this part shall be furnished at the expense of the party requesting copies of the recording or minutes, upon payment of the actual cost of duplication.
(b) All required fees shall be paid in full prior to issuance of requested copies of records. Fees are payable to the “Treasurer of the United States.”
§ 1612.13   Meetings closed by regulation.
(a) This paragraph constitutes the Commission's regulation promulgated pursuant to paragraph (d)(4) of the Government in the Sunshine Act and may be invoked by the agency to close meetings or portions thereof where the subject matter of such meeting or portion of a meeting is likely to involve:
(1) Matters pertaining to the issuance of subpoenas;
(2) Subpoena modification and revocation requests, and
(3) The Agency's participation in civil actions or proceedings pertaining thereto.
(b) When closing a meeting or portion thereof under the Commission's regulation set forth in paragraph (a) of this section, a majority of the Commission membership shall vote at or before the beginning of such meeting or portion thereof to do so. The vote to close a meeting by regulation shall be recorded and made publicly available.
(c) The Commission's determination to promulgate the regulation in paragraph (a) of this section is based upon a review of the agenda of Commission meetings for the two years prior to the promulgation of these regulations.
(1) Since the Commission's practice of conducting weekly meetings began in 1975, proposed litigation against title VII respondents has been a regular agenda item. The tenth exemption of the Government in the Sunshine Act, 5 U.S.C. 552b(c)(10), exempts the discussion of these matters from the open meeting requirements of the Act.
(2) Thus, the Commission has determined that a majority of its meetings or portions thereof may properly be closed to the public under the tenth exemption of the Sunshine Act, and that paragraph (d)(4) of the Sunshine Act is properly relied upon in promulgating the Commission's regulation in paragraph (a) of this section.
§ 1612.14   Judicial review.
Any person may bring an action in a United States District Court to challenge or enforce the provisions of this part. Such action may be brought prior to or within sixty (60) calendar days after the meeting in question, except that if proper public announcement of the meeting is not made, the action may be instituted at any time within sixty (60) days after such announcement is made. An action may be brought where the agency meeting was held or in the District of Columbia.