### Standards for Closing a Meeting of the

Select Commission on Immigration and Refugee Policy

T h e Select Com m ission on Im m igration and R efugee Policy is subject to the requirem ents o f the Federal A dvisory C om m ittee A ct, w hich provides that advisory com m ittee m eetings m ay be closed to the public only upon a determ ination that one o r m ore o f the exem ptions o f the G ov ern m en t in the Sunshine A ct is applicable.

T h e D ecem ber 1980 m eeting o f the C om m ission m ay not be closed in its en tirety for national security and foreign policy reasons, insofar as it deals w ith m atters not relating to those issues; the spirit o f the F ed eral A dvisory C om m ittee A ct requires that them eeting agenda be stru ctu red so that classified and o th er exem pt inform ation is considered separately from the main, and congressionally m andated public, policy discussions and decisionm aking activities o f the C om m ission.

October 10, 1980

T h e C h a i r m a n o f t h e S e l e c t C o m m i s s i o n o n

I m m i g r a t i o n a n d ! R e f u g e e P o l i c y

M y D e a r M r . C h a i r m a n : This is in response to your letter of September 2, 1980, concerning the possibility of closing the December meeting of the Select Commission on Immigration and Refugee Policy for national security and foreign policy reasons. I do not believe that the meeting, in its entirety, may properly be closed on that ground tothe extent it deals with matters not relating to those issues, e.g., enforcement matters. The Commission is an “advisory committee” as that term is defined in § 3(2) of the Federal Advisory Committee Act (FACA), 5 U.S.C. App. I. It is subject to the requirements of the Act. Under FA CA § 10(a)(1), advisory committee meetings must be open to the public unless closed pursuant to § 10(d). Section 10(d) permits closure of “any portion of an advisory committee meeting where the President, or head of the agency to which the Committee reports, determines that such portion of such meeting may be closed to the public in accordance with subsection (c) of § 552b of Title 5 (Government in the Sunshine A ct)” (emphasis added). Thus an advisory committee meeting may be closed only upon determination by an appropriate official 1 that one or more

1 Either “the President or head of the agency to which the [Commission] reports.” For the Commission, the President and the “agency head” are identical. H ow ever, the President has delegated his functions under FA C A to the A dm inistrator o f General Services, Executive O rder No. 12024, §2,

67of the ten open-meeting exemptions of the Governm ent in the Sunshine

Act is applicable. The determination must be in writing. Further, only those portions of the meeting to which the exemption relied upon is relevant may be closed; the remainder of the meeting must be open. You give examples of the types of issues to be discussed at the Decem ber meeting and state your belief that full consideration of thoseissues may involve sensitive national security and foreign policy information. You conclude, based on this, that the meeting should be closedin order to permit the participants “to feel free to talk directly, concretely, and confidentially on issues which vitally affect the formation o f immigration and refugee policy.” Under applicable legal standards, only those portions of advisory committee meetings “likely to disclose matters that are (A) specifically authorized under criteria established by an Executive order to be kept secret in the interests of national defense or foreign policy and (B) in fact properly classified pursuant to such Executive order,” 5 U.S.C. § 552b(c)(l) (emphasis added), may be closed for those reasons. It is, of course, possible that the Commission, during its deliberations, might need to consider particular information related to national defense or foreign policy that has been properly classified (under the standards of Executive O rder No. 12065) by an official with classification authority. If so, that portion of the meeting in which the particular information is proposed to be discussed may be closed (with advance notice) under the procedures of FA CA § 10(d) and OMB Circular A-63, as amended. It does not appear, however, that the entire Decem ber meeting may be closed based on the speculation that a free-form exploration of issuesrelated to immigration policy might require that some classified information be disclosed. The spirit of FA C A requires that the meeting agenda be structured so that classified and other exempt information is considered separately from the main, and congressionally mandatedpublic, policy discussions and decisionmaking activities of the Commission, unless such structuring is impossible. I doubt that it would be impossible in the case of the Decem ber meeting. Should you believe that a portion of the Decem ber meeting must beclosed so that the Commission may consider specific classified information, you should seek the assistance of the Committee Management Secretariat of the General Services Administration in arranging for the
closure.

Sincerely,

B e n j a m i n R. C i v i l e t t i

w ho would be the appropriate official to make closing determ inations with respect to meetings o f the
Commission.
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