Scientists in the Sunshine

Thanks to a recent federal appellate court decision, the National Academy of Sciences (NAS) may soon be conducting much of its business in public. In January 1997, the U.S. Court of Appeals for the D.C. Circuit held that the Federal Advisory Committee Act (FACA)[1] applied to one of the academy's committees, based on the court's reading of the statute and a 1989 Supreme Court decision interpreting this legislation. Animal legal Defense Fund, Inc. v. Shalala[2] addressed the status of the NAS committee that prepared the latest revision of the Guide for the Care and Use of Laboratory Animals.[3] The Guide includes standards for laboratory animal housing, veterinary medical care, animal procurement and placement, staff health and safety, common experimental procedures, and other dimensions of a laboratory animal program. Federal regulations governing laboratory animal care and use require research institutions to base their programs on these guidelines, and other federal policy documents endorse them in various ways. The question for the appellate court was whether FACA applied to the committee that formulated these guidelines. Congress enacted FACA in the early 1970s so that its members and the public could be better informed about advisory committee activities. Committees subject to FACA must conduct open meetings, provide public notice of meetings, allow interested persons to present written or oral testimony (subject to reasonable rules), and make committee records and documents available for public inspection and copying. Moreover, committee membership must "be fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee." The law permits exceptions to the requirements for open meetings and records based on exemptions in the Freedom of Information Act. The NAS was created by congressional charter in 1563 to advise the federal government on scientific matters. The Guide was prepared by a committee appointed by the National Research Council, the principal operating arm of NAS. The council and one of its components, the Institute for Laboratory Animal Resources (ILAR), produced the first version of the document in 1963 and prepared several subsequent revisions as well. In 1993, ILAR obtained public funding to revise the 1985 guidelines and selected for the committee sixteen individuals from academia and the private sector, including scientists, veterinarians, and one person with a religious studies and bioethics background. Although the committee held some open meetings, its deliberative sessions were closed to the public. Animal advocacy groups filed a lawsuit arguing that FACA required those sessions to be open as well. The U.S. District Court granted summary judgment against the plaintiffs. On appeal, however, a three-judge panel ruled in favor of the advocacy groups. To support its finding that FACA applied to the committee, the court of appeals consulted two primary sources. First was the language of the statute itself. According to FACAs definitions section, the law covers committees "established or utilized by one or more [federal] agencies, in the interest of obtaining advice or recommendations for ... one or more agencies or officers of the Federal Government ..." As the court noted, it was "quite obvious" that federal agencies made use of the committee's guidelines. But courts have interpreted the statutory term "utilized" more narrowly than its plain meaning might suggest. Most relevant is a U.S. Supreme Court ruling on FACA, Public Citizen v. United States Department of Justice.[4] In this case, the Supreme Court examined FACAs legislative history to determine whether Congress meant for the law to apply to an American Bar Association committee advising the Department of Justice on federal judicial candidates. Even though the department indisputably used materials generated by this committee, a majority of the Supreme Court found no congressional intent to extend FACAs provisions to a private group receiving no federal funding, such as the bar association. …