REPORT TO THE ADMINISTRATIVE CONFERENCE

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FEDERAL ADVISORY COMMITTEE ACT:
INHIBITING EFFECTS UPON
THE UTILIZATION OF NEW MEDIA IN
COLLABORATIVE GOVERNANCE &
AGENCY POLICY FORMATION
Prof. James T. O‟Reilly1
Introduction
The Federal Advisory Committee Act governs the 900 committees
which advise federal agencies in about 7,000 meetings each year. The
purposes of the 1972 FACA were to reduce the number of then-existing
outside advisory groups, to open their meetings and records to the public,
and to structure the committee operations to be more visible and
accountable. In recent years some observers have said that the 1972 statute
has come to constrain agency interactions with members of the public, and
some have encouraged the agencies to use more of the “new media”
electronic tools to be more efficient and less costly. This study surveyed
some of the agency committee managers, examined the published literature,
interviewed numerous agency officials, and reviewed the case law. This
draft report surveys the conventional and electronic solutions to real and
perceived limitations that are imposed by FACA upon agency interactions
and advice.
Scope of the Study
This study of collaborative governance techniques using “new
media,” including the communication devices known as “social media,”
examines the real and perceived constraints upon agency committee
managers under the 1972 Federal Advisory Committee Act (FACA). The
consultant interviewed federal committee management officers (CMO),
some Designated Federal Officials (DFO), and a few attorneys of the agency
legal offices collectively described as general counsel (GC). With the
1

College of Law, University of Cincinnati. This report was prepared for the consideration of the
Administrative Conference of the United States. The views expressed are those of the author and do not
necessarily reflect those of the members of the Conference or its committees.

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assistance of Administrative Conference (ACUS) staff and the central office
handling advisory committee matters at the General Services Administration
(GSA), other agencies were polled via email, and several views were
received. In addition, several non-federal veterans of the advisory committee
process offered their views when informed of the study. Cooperation was
obtained from many but not all agencies that were contacted. The views
expressed in this paper, except where noted to the contrary, reflect the views
of numerous participants. No effort was made to drive the commenters to
any particular consensus, but the consultant has distilled various resources to
aid in the conclusions and suggestions for action.
The task assigned was: “Conduct a study of potential improvements
to the Federal Advisory Committee Act (“FACA” or “the Act”) and agency
practices under the Act. The study shall identify best agency practices with
respect to FACA and it shall particularly investigate, although it need not be
limited to, challenges that the Act poses to use of 21st-century media (such
as e-mail, social media, interactive web forums or other websites, and the
like) and to “collaborative governance” efforts, and shall consider how the
Act or practices under the Act might be improved with respect to these
challenges.”
1. The Federal Advisory Committee Act 1972-2011

“Consensus” advice to the government was the focal point of advisory
committees for decades before 1972. Typically, the advisors were assembled
in one room with the Secretary or Director, and collectively communicated a
common viewpoint to that convening official and the agency staff. That was
the model of advice transmission between advisors and agencies under the
1962 and 1972 executive orders.2
A. The Early Models
Agencies have been receiving advice for as long as there have been
agencies. The power of those who gave advice has evolved, but the political
climate within which the FACA was adopted in 1972 was a remedial
approach to address prior perceived difficulties3. Too many of the advisory
groups were perceived as being influential with agencies during the 1950s,
2

Exec. Orders 11007, 11671.
Background of FACA is addressed in detail in 2 James O‟Reilly, Federal Information Disclosure ch. 24
(3d Ed. 2010 Supp.)
3

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but the groups were not publicly accountable,4 so President John F. Kennedy
imposed a mild control under a 1962 Executive Order.5
The model of the ideal public meeting of an advisory committee was
static in time and place; the advising function would occur in a conference
room, and if the topic was not classified or confidential, public attendees
could sit and watch the members interact with agency staff and with each
other, and vote on a set of recommendations. These would be funneled to
agency managers, sending their conclusions through an employee who was
designated to work with the chair and members of the committee. The
1971-72 debate on the bill that became FACA showed a concern that
committees too often met in secret and that agencies delegated too much
power to these private persons.6 The sponsors of advisory committee
legislation desired that committee members should be selected with
“balance”7; the Senate sponsor, Senator Lee Metcalf, suggested that one
third of seats on an advisory committee be reserved for representatives of the
public interest.8
The advisory committee concept in 1972 emphasized public
attendance and public access to non-confidential documents being
considered by the committee. 9 In hindsight, the structure of public
attendance in FACA did not contemplate the use of rapid electronic
“collaborative governance” instruments for idea sharing, tools that are
available in 2011. That is not a criticism but a reflection of contemporary
context as of the time of its passage.
B. The Framework of FACA
FACA as passed includes directions from Congress to its committees
when creating advisory committees in legislation; directions to agencies
when the agency is creating a new advisory committee; directions for the
4

Scholars have not always agreed about FACA, see 2 James O‟Reilly, Federal Information Disclosure ch,
24 (3d Ed. 2010 Supp.) and see articles in the Bibliography appended. One useful approach is taken in
Steven P. Croley & William F. Funk, The Federal Advisory Committee Act & Good Government, 14 Yale
J. on Reg. 451 (1997).
5
Exec. Order 11007 (1962).
6
Richard Wegman, The Utilization and Management of Federal Advisory Committees (Kettering
Foundation, 1983)
7
5 U.S.C. App. 2 §5(b)(2)
8
S. 1637, 92d Cong. 1st Sess. (1971)
9
The conference committee chose the House vehicle, see S. Conf. Rept. 92-1403, 92d Cong. 2d Sess.
(1972).

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OMB (later GSA) in overseeing committee work; and operational
requirements. FACA contains restrictions on creation of new committees,
obligations for approval of committees, procedures for chartering, operation,
renewal and termination, and provisions on public access and for closing
sessions related to confidential or classified matters.10
The FACA has several important purposes which were explained in
the 1971-72 legislative history11 and expanded upon in later case law.
First, it promotes transparency in administrative agency decisional
processes, by publishing notice of committees and agendas, disclosing
detailed charters, and standardizing who can advise what agency, in
scheduled or repeated meetings with whom, how and when.12
Secondly, it exposes decisional documents of that advising process, so
that the public can view (with some classified documents exceptions) what
the agencies offer to the advisors for their consideration.
Third, it draws from advisors their “consensus” of expert response to
agency scenarios, licenses, approvals, strategies, etc., sometimes with a
public vote among the advisers.
Fourth, it allows attendance at the session by observers (and
sometimes allows them to offer public input as speakers).
Finally, it communicates the outcome, e.g. the recommendation and
any recorded vote, to those outside, through minutes or transcripts or both.13
C. The Role of Delegation to GSA
FACA‟s passage in 1972 resulted in Presidential delegation of
oversight authority in Executive Order 12024 (1977) to GSA.14 In 2000,
GSA‟s proposed rules on FACA were issued for public comment. Some
agencies responded, but only 6 comments from outside the federal
government were submitted. There were occasional appellate decisions as
10

5 U.S.C. App. 2
S. Conf. Rept. 92-1403, 92d Cong. 2d Sess. (1972).
12
5 U.S.C. App. 2
13
The details are described at length in 2 James O‟Reilly, Federal Information Disclosure ch. 24 (3d Ed.
2010 Supp.)
14
Executive Order 12024, 42 Fed. Reg. 61445 (1977)
11

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the new law was tested by substantive opponents of an agency decision. Of
the federal information oversight statutes, FACA has drawn the least amount
of litigation and a very small amount of law review commentary (see
Bibliography). GSA has expressed the view that: “The statute clearly states
the only purpose of Federal advisory committees is to provide independent
advice and recommendations to the Executive Branch of government.
FACA is neither a public participation statute nor a collaborative process
between the government, a Federal advisory committee, and the public.” 15
The final rules were published July 19, 2001,16 went into effect August 20,
2001, and have not been changed since.
D. FACA Coverage
This paper will now briefly look at the issue of FACA coverage
definitions. Of the federal information oversight statutes, FACA has drawn
the least amount of litigation and a very small amount of law review
commentary (see Bibliography).
FACA‟s first test is jurisdictional -- whether a specific group has the
legal character of an “advisory committee” at all. FACA applies if a group
of individuals from the private or non-federal governmental sector is used by
an agency “in the interest of obtaining advice or recommendations.”17 The
group must be either “established” or “utilized” by a federal “agency,” to
have the basic attributes of an advisory committee.18 The predicate to having
the FACA apply is to have a group that satisfies the statute‟s prerequisites.
The statutory language is ambiguous, and agencies separately define their
terms of coverage in line with the 2001 GSA rules.
Exclusions from FACA are numerous. One-time meetings, individual
to individual meetings, meetings with contractor-organized groups, or visits
by the agency staff to meetings of existing private sector groups, are not
subject to FACA19. Federal agency disputes with challengers about the
coverage have been relatively few compared to other administrative
transparency statutes like the Freedom of Information Act.20 Courts
15

GSA Committee Management Secretariat, to Administrative Conference (March 1, 2011).
66 Fed. Reg. 37727 (July 19, 2001)
17
5 U.S.C. App. 2 §3(2)(C)
18
5 U.S.C. App. 2 §3(2)(C)
19
See e.g. Grigsby Branford & Co. v U.S., 869 F. Supp. 984 (D.D.C. 1994); Natural Resources Defense
Council v Dept. of Energy, 353 F.3d 40 (D.C. Cir., 2004)
20
Contrast the few dozen FACA cases with 5,500 FOIA cases, for example.
16

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sometimes have had to parse the terms of coverage.21 But the agencies that
apply these ambiguous terms to cover or exclude their own committees are
in a weak posture to ask for judicial deference to their interpretations, since
the FACA delegated authority to a central expert body (currently the GSA)
rather than to empower specific agency determinations of the statutory
terms.
These two statutory words, “established” and “utilized,” are terms of
art when used in the FACA context.22 “Established” connotes an active
formation effort for the group by a federal agency. A pre-existing nonfederal
entity is not “established” when an agency asks for its advice, e.g. a bar
association committee that rates candidates.23 Agencies routinely ask
organized entities outside the agency to provide views on agency programs.
As a general matter, an agency‟s receiving advice from individual
commenters does not implicate the statute, since the agency has not
“established” the group of persons providing input. For instance, the
internet sharing of drafts prior to meetings would seem to be common
practice. Agencies already receive web-based comments directly, through
their blogs, and through Regulations.gov. But the advisory committee
commentary on a proposed document would receive more attention than a
casual commenter. The very looseness of internet input is a contrast to the
FACA structure of input. In general, a person contributing advice to the
agency may use anonymous URLs, can lift segments of comments to send to
agencies from blogs, wikis or other sources with or without attribution, and
these inputs to the agency will generally be out of the “control” of the
“designated federal official” who is to oversee each meeting.24
“Utilized” is a more difficult term to apply for FACA purposes.25 The
courts have had varying degrees of interest in the agency‟s utilization of the
output of a group, as an indicator of the committee‟s relative status vis-à-vis
the agency.26 A moderated panel of wiki contributors or a listserv limited to
members of a particular background, e.g. administrative law professors or
21

See e.g. Public Citizen v U.S. Dept. of Justice, 491 U.S. 440 (1989); Judicial Watch v Clinton, 76 F.3d
1232 (D.C. Cir. 1996)
22
5 U.S.C. App. 2 §3(2)(C)
23
Public Citizen v. U.S. Dept. of Justice, 491 U.S. 440 (1989)
24
5 U.S.C. App. 2 §10(f).
25
5 U.S.C. App. 2 §3(2)(C)
26
Sofamor Danek Group, Inc. v. Gaus, 61 F.3d 929 (D.C. Cir. 1995); Aluminum Co. of America v.
National Marine Fisheries Service, 92 F.3d 902 (9th Cir. 1996).

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teachers of legislation and election law, will be an informal gathering of like
minded persons who probably will never be in the same room at the same
time.27 They can be resources from whom the federal agency staff can draw
useful insights; but the group is amorphous, like a “cloud” of independent
thinkers.
If the group of individuals had existed before the government agency
had asked for its advice,28 the utilization of this existing „virtual‟ group will
not be an advisory committee, under the case law.29 Such a group outside the
federal government, that has a role and existence apart from federal issues,30
or a group that advises congressional but not administrative recipients of
advice,31 or groups that did not otherwise meet the “utilized” standards,32
would be excluded.
2. New Media
It is not simple to apply the highly structured terms of the 1972
FACA and the 2001 GSA rules to the “noisy” electronic feedback of a 2011
interaction via new media. Dozens of commenters can be sending feedback
to a listserv that the agency used to pose questions before it began a
rulemaking project. If we assume the new media participants were to take on
the legal existence of a “committee,” when are they an “advisory”
committee? Has the group in fact played a role in advising the federal
agency? The court precedents interpreting FACA have been ambiguous,33
and the advising function has many features. An advisory committee is a
group of individuals, not all of whom are federal employees, which has a
role to provide advice or recommendations to a federal agency. 34
Most new media feedback vehicles have participants who are not so
much “formed” or “utilized,” as they are volunteer commentators, streams of
27

See e.g. the listserv for administrative law teachers, adminlaw@chicagokent.kentlaw.edu.
See e.g. Huron Environmental Activist League v. U.S. E.P.A., 917 F. Supp. 34 (D.D.C. 1996).
29
The bar group that rated candidates was excluded in a controversial Supreme Court decision more than
two decades ago. Public Citizen v. U.S. Dept. of Justice, 491 U.S. 440 (1989).
30
International Brominated Solvents Ass'n v. American Conference of Governmental Indus. Hygienists,
Inc., 393 F. Supp. 2d 1362 (M.D. Ga. 2005)
31
Manshardt v. Federal Judicial Qualifications Committee, 408 F.3d 1154 (9th Cir. 2005); Opinion of
Assistant Attorney General T. Olsen to K. B. Kamalii, Native Hawaiian Study Commission (Jan. 4, 1982),
32
Wool Growers Assoc. v. Schafer, 637 F. Supp. 2d 868 (D. Idaho 2009), order clarified, 2009 WL
3806371 (D. Idaho 2009)
33
The case law is addressed at length in 2 James O‟Reilly, Federal Information Disclosure ch. 24 (3d Ed.
2010 Supp.)
34
5 U.S.C. App. 2 § 3(2).
28

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opinions that are composed of ad hoc accretions of multiple individual
persons wanting to give their inputs to others in their group. These “new
media” uses do not, as a general matter, implicate FACA. For instance, a
typical agency blog‟s comment stream is not collective or consensus
focused. Like any broadcast of a conversational dialogue, comments are
open and whoever chooses to reply can do so without forming a collective
response from all others.35
Nevertheless, other “new media” applications are more likely either to
implicate the statute or come sufficiently close to doing so that agencies may
be somewhat reluctant to use them. For instance, in the case of a “private
Wiki,” the moderator can decide on the structure of the feedback loop and
may restrict access to give comments to only a set of pre-identified
participants as co-drafters of the Wiki text. If the agency actually selected a
group of participants to participate in drafting a “Wiki,” the participants‟
efforts in reaching collective consensus could potentially implicate the
statute. Similarly, a group of persons specifically invited by an agency to
participate in a LinkedIn or Googlegroup application may qualify as an
advisory committee subject to the statute. A private sector person acting as
the group moderator on LinkedIn receives opt-in request messages and may
exclude some persons who are not selected to be members. Our research to
date has not found such an entity invited by a federal agency to be a
“virtual” advisory committee, but one or more examples may exist.
3. The Survey
The GSA Committee Management Secretariat (GSA) aided the
consultant in identifying agency personnel familiar with FACA operations.
50 agencies were solicited by a GSA email for a brief set of 7 questions;
only 2 responded. 15 agency employees (selected to mix Cabinet and nonCabinet agencies) were approached directly by email and phone by the
consultant for a longer set of questions. Most of the agencies had CMOs
who were willing to be interviewed off the record. Several non-CMO
veterans of the advisory committee process also gave their views on the
questions, as volunteers with experience who had learned of the existence of
the study. Because of the sensitivity felt by the CMOs concerning this topic,
the consultant agreed to keep their identifying details confidential. Since the

35

See e.g. http://www.facebook.com/departmentoflabor.

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agency typically has one person as its CMO, naming the specific agencies
would reveal the source person as well.
The set of questions posed for those interviews were:
1.
Your agency regularly interacts with outsiders for “advice” on agency
programs or policies. Has the FACA limited your agency‟s use of
communications and collaboration with persons outside the agency
regarding policy matters, and if so, how?
2.
What effort is being made by agency outreach or public relation staffs
to use the “social media” to gain more input to the agency? In doing so, how
they have reconciled these actions with FACA?
3.
Does the agency have informal guides on consideration of the “best
practices” for social media use in dealing with the public?
4.
Please identify any action that agency managers would like to do, but
which they believe that they cannot do because of the constraints of the
current FACA system.
5.
How does your agency currently utilize the advisory committee
members outside of the formally announced committee meetings?
6.
Is policy formation one of the areas in which advisory committee
members are used?
7.
Are there individual members of your agency‟s FACA committees
that serve as a more flexible source of ongoing advice to agency staff? Are
they used often for this advice? When they are asked, and their views are
solicited outside of announced meetings, does your agency staff believe that
this interaction would pose a problem under the agency‟s FACA rules?
8.
Does your agency routinely draw on the wisdom of selected members
without having fixed pre-announced meetings, or without hiring the
members as federal contractors?
9.
Is there any aspect of FACA that inhibits the agency‟s informal adhoc use of advisory committee members?
10. Does or could your agency have a website dialogue among agency
staff and committee members before meetings are held, to which the public
would have access, as they discuss the issues within the sphere of that
advisory committee?
11. The current FACA committee rules do not apply to small
subcommittee groups. Does or could the agency use the FACA rules‟
“subcommittee” exception to allow email exchanges between groups of
advisory committee members, in a subgroup smaller than the full
committee?
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12. Is there any aspect of FACA that you would recommend be altered to
assist in your agency‟s current and future work, compared to the existing
language of the 1972 FACA?
The survey methodology of contacting CMOs, the most experienced
persons who deal with advisory committees, has the benefit of extracting
lessons from a more extensive set of experiences than would be available to
the average agency staff member. But it also has the limitation that the
CMOs are more directly invested in the current system which they manage
for their agencies than, for example, an agency senior manager or an agency
general counsel might be. A cohort of CMOs is perhaps much more likely to
support the existing FACA regime than is a group of agency staff who have
used (or considered using) an advisory committee.
A wider audience in drawing conclusions, beyond CMOs, would be
ideal if it were truly representative. To get the right mix, one would need to
have a selection protocol for interviewees that captures the proper weighting
of views. One would ideally seek to discern opinions from an accurate
selection of the occasional users of FACA including some managers, staff
members and those who regularly interact with the CMOs. Achieving a
“balance” of views is an ideal in FACA but may be infeasible across
agencies and across agency staffs. On balance it was deemed better to have
the most experienced agency members give their interviews, and to be open
to additional inputs as the ACUS process moves ahead.
As an adjunct to the interviews, we reviewed the published literature
about FACA (see bibliography) and observed the comments of scholars
about its operations.36 In theory one could seek a broad feedback from
agency managers and agency counsel, then solicit the 65,000 members of
federal advisory committees,37 but the validity of that self-selected response
of anecdotal experience would be debatable.

36

The consultant first wrote about FACA in 1976 in his treatise, Federal Information Disclosure, now
entering its 4th edition in 2011, and has read each case and significant policy document on FACA while
writing semi-annual supplements to volume 2 of the treatise.
37
Statistic was of 2007 covering 915 active FACA committees. GAO Testimony, Robin Nazzaro, “Issues
Related to the Independence and Balance of Advisory Committees”, at page 1, GAO-08-611T, House
Subcom. On Information Policy (April 2, 2008)

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4. Results of the Survey
A. Some Want to Avoid FACA, by Legal Means
Agency CMOs recognize that the delay in assembling, scheduling and
announcing a meeting for an existing committee makes it unlikely that the
CMO can respond to agency managers‟ desire for rapid feedback and quick
advice on a timely issue. This is a practical problem for the CMO who wants
to be responsive and helpful. A major health agency takes about 82 days
from the date of an agency manager‟s request that the existing chartered
advisory committee consider a particular issue or product problem, until the
meeting is held. Several in Cabinet departments told of the pattern of
frustration among new political appointees who arrived at the agency with a
desire for rapid results, but who had to wait for answers. So patterns of
contractor use, sequential individual meetings, “town hall” non-consensus
sessions, and other forms of non-FACA alternatives are utilized by the
agency to speed response.
B. How Can New Media Help Avoid FACA Barriers?
Among agency CMOs interviewed, there were several creative
alternatives that could be offered when a barrier of FACA delay interferes
with a rush project of external advice that is requested by an agency
manager. Conventional options discussed later in this report include
meetings in sequence between the agency and the known set of interested
persons or associations, which are the simplest alternative to a FACA
meeting; no group consensus is involved.
The use of electronic “new media” affords additional options. The
following are ways to get advice to the agency management through new
media without triggering FACA.
Those agencies that discussed agency outreach efforts to use new
media to gain more input to the agency did not report that FACA was a
barrier. Several agency policies on new media use have been developed, and
these were discussed with the agency public affairs person whom the CMO
invited to be on the call for our interview38; but these new media outreach
38

See e.g. Dept of Defense Directive Type Memorandum DTM-09026 (Feb. 25, 2010)

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plans or policies did not devote attention to FACA considerations. There is
not a sense among CMOs that FACA inhibits the agency use of new media,
since the new media responses like Twitter and Facebook are not in the form
of the structured “consensus advice” which FACA envisions. There are new
media opportunities which the agencies are using to varying degrees, but the
CMOs did not report a sense of inhibition of new media by the strictures of
the FACA rules.
(1) Group Survey Software
Survey tools for public response sampling are another benefit of the
use of social media. Engines like “Surveymonkey.com” allow the survey
drafter to get collective ratings of preference among items from the preidentified addressees of the survey, members of a group who can vote for
certain responses, as with any survey within any group. The availability of
the survey also may be announced on broader media with the URL
designated, and may be open to any contributor who learns of the existence
of the survey and who wishes to have the group consider his or her views
among the statistical compilation of all votes received. For example, should
there be a cap on annual total nitrous oxide emissions from any permitholding coal-fired utility power plant of zero, 500 tons, or 1,000 tons? The
survey is only as useful as its polling base and statistically representative
sampling; an answer of “zero” might be selected by a cohort largely
composed of asthma patients, while “1,000” might be selected by a group
from a coal mining state. Note that if the survey is done by a federal agency
through one of these polling mechanisms, the agency does not individually
receive substantive feedback from voters in this process. Whoever chooses
to “vote” via the survey tool expresses an opinion, but their identities and
affiliations are not transparent. This is not a FACA violation, since no
“group” consensus is achieved.
(2) Outputs of Opinions
Another vehicle of electronic support for collective governance is the
immediate dissemination of individual opinions during a hearing or trial or
during a rulemaking comment period, with the brief communications made
via email or by Twitter software. The 140-word tweet in real-time comments
expresses one view of an event: the FDA hearing on diet supplements, or the
EPA greenhouse gas public meetings, etc. These are expressions of
individual views toward the public proceeding, and they do not call for
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collective decisions, though others may tweet with contrary opinions.
Twitter opinions come from defined persons and may be rebutted
immediately by other defined persons. The Twitter input is not usually being
solicited by the federal agency, though it may be in rare circumstances when
the agency wants to obtain the most rapid brief expressions of opinions
about the current controversy of the day. Since no group consensus is being
sought, these uses of “new media” do not implicate FACA.
(3) Facebook and Equivalents
The well known social media site Facebook can be used by an agency
to post a decision or a rule or a policy issue. Once it is posted, the recipients
who read the message postings can give selected feedback: they can “like”
the posting or/and become “friends” for this issue once the issue is given its
own Facebook page. For example, antibiotic use in chickens is being
regulated to prevent harm to humans from excessive residues in food.
Farmers and their opponents could start competing Facebook pages
(“savehealthyfood.org” versus “preservethefamilyfarm.com”) and the
agency staff members would learn insights about the topic from the
comments on each of the competing pages. A Facebook “note” could be
posted to show new data of the agency; then perhaps 300 people with an
interest in the topic could post their comments; and perhaps 500 people
could “like” the expression of a commenter while 2,000 could become
“friends” of another competing Facebook page expressing a contrary view
(“fightdrugoveruse.org”).
One CMO expressed his agency manager‟s frustration that the agency
had launched a new Facebook page and had 1,800 friends, but lacked
feedback on the new consumer-friendly usage features because the agency
counsel cautioned against surveys of the “friends.” It was apparently feared
that soliciting advice from a group of named persons to give feedback on an
agency action might be deemed to be use of an unauthorized advisory
committee. The CMO compared this to the whitehouse.gov page (exempt
from FACA) which invited visitors to “advise the advisor.” Likewise, a
Cabinet officer was going on a tour of small businesses, but could not do an
advance survey of views among small business owners, so a consultant was
asked to gather the information. (In the latter example the CMO cited both
FACA and the Paperwork Reduction Act as barriers to gathering of views.)

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(4) Sequential E-Mail Threads Within a Known Class of Persons
Important to the analysis of new media documents in this report is the
status of those persons who are allowed to edit and endorse a final product
of a group‟s web dialogue. A group document with 12 authors who are
affiliated is commonplace within a common hierarchy. Things are different
when a document styled or intended as a “consensus” is started by an author
who is an employee at a federal agency, who then selects a group, and then
the text is modified by a broader group of invited, non-agency persons,
ending up as a collective recommendation to the agency leadership that
carries some weight of authority, because the outside views were melded
with the agency staff views. Wiki group or googlegroups document
contributors can be privately selected among a closed group, or entirely
public, or open to identifiable subscribers who opt in, with the concurrence
of the Wiki moderator. This use of “new media” may implicate FACA.
(5) ListServs
Another new media vehicle is the “listserv” communication of e-mails
on issues with feedback made in other e-mails addressed to the list, the
posting of which will be moderated by a coordinating person. Options
include “googlegroups” and others. The list member has the opportunity to
view and respond to documents that others outside the group generally will
not see; the listserv feedback of messages aids the moderator in producing a
collectively improved product, but it is the moderator‟s choice on how and
whether and when to accept the input from listserv members. No physical
meeting takes place. It can be argued that this could a “virtual meeting”
subject to FACA if the agency staff moderated and selected members for the
listserv.
(6) Drafting Through a Wiki Software
The most useful collaborative drafting tool among the new media
tools, the “Wiki”39 is oriented to collaborating on the drafting of a common
text. The most visible example is “Wikipedia”, the collection of articles and
essays which is the product of tens of thousands of volunteer contributors. A
more typical Wiki draft is a document, prepared by one or more people
39

http://en.wikipedia.org/wiki/Wiki

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affiliated with a named group or interested in a particular topic, which
document then can be edited on-line by others with additions, deletions and
rearrangements proposed by various persons, and with changes that are
usually accepted by a moderator (or put on hold, pending a group decision
regarding the further modification of the draft document). The self-actuated
group of volunteers then is polled as to its acceptance of the revised text, and
it goes forward to a collective decision as the reflection of that group‟s
views.
With the use of a Wiki, the creator has options: private or public;
allow anyone to edit or only allow selected people to edit; password
restricted or not. A wiki will automatically save every version of a document
and identify who made what changes at what time. Meetings could be
convened by private groups. While the document is being altered on
screen(s), the group can be discussing the issues on a Webinar or on a Skype
video feed. One agency has considered use of SharePoint group software,
another collective sharing possibility. FACA status under these
circumstances will be very fact-determined, and no generic conclusion can
be declared.
(7) LinkedIn and Googlegroups
Business networking sites such as LinkedIn allow members to post
their items to a LinkedIn group and then to review comments about the topic
in a group setting. The LinkedIn group is composed of persons who
volunteer for the group, are then accepted by a coordinator/moderator, and
the group hears the feedback of other group members who choose to provide
input. A similar program, googlegroups.com, allows a comparable form of
feedback among members. Messages may be available only to members who
are accepted by the googlegroup‟s moderator, or the panel could be open to
anyone wishing to read the draft document. A group on LinkedIn or
Googlegroups could qualify as a committee if the agency specifically chose
the membership and the members worked towards group consensus. If the
agency did not choose the membership, then it would be a harder question,
though the group still might be “utilized” if the agency were heavily
involved. Again the facts will determine the likely legal consequences under
FACA.

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(8) Blogs
The last and simplest social media system may be the use of
conventional blog communications by agency heads with feedback coming
in the form of blog comment responses. Assistant Secretary X posts her
short essay on the X Blog; Mr. Y posts a comment in response. Blogs are
not typically consensus vehicles, although individuals may come closer to
consensus more rapidly by exchanging blog postings and comments. As
such, some blogs in which consensus is being sought may implicate FACA,
whereas other blogs that feature posting by a single person or seriatim
comments not focused on reaching any particular consensus probably do not.
C. Use of Member Individual Advice between FACA Meetings
The survey asked if there is any aspect of FACA that inhibits the
agency‟s informal ad-hoc use of advisory committee members. None was
reported. One question asked about interactions with outsiders for “advice”
on agency programs or policies. This is frequently done 1-to-1 by staff, but
the great majority of CMOs surveyed said FACA had not limited their
agency‟s use of communications and collaboration with persons outside the
agency regarding policy matters. The survey asked how the agency currently
utilizes the advisory committee members outside of the formally announced
committee meetings, and the responses were that the chair of the committee
and the staff member who is the designated federal official (DFO) would
handle those interactions; the CMOs were not involved. The formation and
oversight of policy issues [“What should we do? How are we being
perceived by constituents?”] was one of the areas in which advisory
committee members are used but usually informally. Contacts occur from
staff to member or within the structure of the linkages between committee
chair, DFO and agency staff. In some cases, the individual members of an
agency‟s FACA committees may be asked for advice by agency staff, but
the occasions are not regarded by the CMOs responding as covered by
FACA because no “consensus” of the collective group was asked.
D. Other Conclusions from the Survey
(1) CMOs were asked if the agency has web-based dialogue among agency
staff and committee members before meetings are held and whether these
pre-meeting interactions are publicly accessible. Few responded, and they
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regard the pre-meeting interactions with committee chairs and DFOs as a
normal part of operating a committee. None reported that the individual calls
or pre-meetings were inhibited by FACA.
(2) As a general matter, agency managers do not find the current FACA
regime overly constraining. The survey asked about actions that agency
managers would like to do, but which they believe that they cannot do
because of the constraints of the current FACA system. We heard only a few
examples; most were satisfied with the current system. However, several
volunteered that when delays under FACA were a concern, the CMOs could
show the agency manager how to obtain equivalent insights without an
advisory committee [Note that CMO views and the views of their
constituents may differ. The survey did not have a means to reach a truly
representative sample of agency managers.]
Those CMOs surveyed explain that if there is a question about the
delays or constraints of FACA, the CMO will engage in a dialogue with the
agency staff member about how to draw in the type of outside advice
desired, without creating a new FACA committee and/or without awaiting
the next session of an existing agency committee. Several agency CMOs
observed that when they are requested to help staff members obtain a
consensus of outside opinions, they explain the delays and paperwork to the
inquiring person, and then describe how to use alternative means to gather
the same type of inputs, while avoiding a FACA violation. They strive to
arrange the interaction so as to get the type of responses the agency staff
member wishes, typically by inducing the staff member to call for a series of
1-to-1 interviews that ask the advisors individually to opine or otherwise
assist the agency. For example, when told that a new committee would take
months of justification, hierarchical approvals, charter drafts and vetting of
proposed members, the result is that the inquirer drops the issue, and other
options are requested. At a scientific agency, one meeting of an existing
committee would take 82 days to set up, so alternatives are offered. In
practice, agency managers appreciate the suggestions for alternatives as
means to avoid these problems.
(3) Overt violations of FACA were not reported during the survey. A small
minority of CMOs are aware of instances in which there could have been a
FACA problem, but none of those interviewed spoke of any intentional
violations of the threshold provisions of the FACA.
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E. Questions of Changes to the FACA Statute
Most agency CMOs did not offer suggested revisions of the statute, in
response to our survey question. Their primary legislative concern was that
the subcommittee exception not be rescinded as it would have been under
the 2010 House-passed H.R. 1320. As noted above, the methodology of the
survey was focused on CMOs, and we recognize that others may wish to
have aspects of FACA changed. A single CMO said that FACA “is in
desperate need of an update.” This person would prefer to rapidly invite
members when needed for online interaction, but did not have suggestions
for the alteration. But most CMOs declined to suggest changes.
As to the principal FACA norms of public notice, observer
attendance, chartering, etc. there was support from the CMOs for the system
to remain as it is, since the CMOs as a group favor the public observation
and the sense of structured legitimacy which the FACA charter provides.
They would prefer that there be less delay and rework in charters for new
FACA committees. (A CMO at an agency which has many classified
documents concerns noted that a minority of its FACA committee meetings
were open to observers, but the majority of its meetings discussed items for
which the members had to have appropriate levels of security clearance and
had to be held “live” inside a secure facility.)
F. Issues Not Addressed in the Survey
Other venues have suggested changes to the rate of closure of
advisory committee meetings. More than 64% of all FACA meetings were
closed to the public in 2007.40 Some have suggested changes to member
selection to reduce the potential for conflicts of interest.41 Numerous
scholars have authored studies on potential improvements in FACA
operations, listed in the bibliography. These are FACA issues which are not
addressed in the scope of this paper, without expressing a view on their
merits.

40

Mary Alice Baish, “2008 Government Secrecy Report Card”. American Assn. of Law Libraries
Spectrum at 8 (Nov. 2008)
41
GAO Testimony, Robin Nazzaro, “Issues Related to the Independence and Balance of Advisory
Committees”, GAO-08-611T, House Subcom. On Information Policy (April 2, 2008)

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5. Current & Future Best Practices
A. Best Practices for Advice by Conventional Means
Agencies should, of course, always comply scrupulously with the
letter of both FACA and its implementing rules. Nevertheless, the survey
uncovered a number of “best practices” by which agencies could efficiently
conduct committee meetings while fully complying with all relevant law.
Avoiding FACA by using channels of communication that are not
seeking a group consensus is one such “best practice.” Garnering public
response to policy makers inside the agency need not be done on a group
basis. So, one best practice might be to avoid the FACA by working actively
to receive a sequence of individuals‟ comments and advice in a “town hall”
format, but to avoid seeking a group consensus when doing so.
Timing is a primary concern. Excessive delays in the lead time needed
for scheduling a meeting inhibit agency responses to crises such as
epidemics and other urgent demands. Several alternatives exist:
(1) Some CMOs have said that an agency manager who has an urgent need
for specialist advice today will have to pay a contractor to assemble a group,
and will receive a report of the consensus under the letterhead of the
consultant, not that of the agency DFO. These consultant groups are not
“advisory committees” although the end point of their advice is known to
everyone participating.42
(2) Some CMOs said that the agency can circumvent the delay by having an
“open forum” meeting with no overt consensus requested, thereby avoiding
FACA coverage, with or without a Federal Register announcement of the
open forum.
(3) Managers can sit in an office while a series of sequential visitors come
through with their separate advice. Each of the visitors may have interacted
together outside of the office, but when they come into the agency, the
FACA requirements can be avoided by scheduling the “serial meetings”
with individual commenters, avoiding one consensus moment of collective
42

Byrd v US EPA, 174 F.3d 239 (DC Cir 1999), cert. den. 120 S. Ct. 1418 (2000).

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advice. To the extent that each commenter echoes the others‟ views, the
agency has obtained its collective input. But such a process is artificial
(“ossified” to use an administrative scholar‟s term) since the agency must
take considerably more time or expense in the act of collection of these
redundant views, compared to simpler group dialogues that would ordinarily
occur.
B. Best Practices of Working Through Subgroups
The agency CMO can help the committee to operate more efficiently
by the use of subcommittees. On one aspect, the law is silent but the rules
speak: a subcommittee of two or more members may be assigned by the
chairman of the existing FACA committee to develop a proposal, write a
draft, study a sub-issue in advance of a meeting, etc.43 The CMOs surveyed
expressed support for retaining the faster and less cumbersome option of
delegation of projects to subcommittees.44 Agencies sometimes recommend
that chartering a new committee be avoided where the project could be
accomplished by a subcommittee of an existing advisory committee.45
The work of the subcommittee is excluded from FACA by the GSA
rules, but its existence would be disclosed in the minutes of the prior
FACA meeting. Because it is excluded, agency subcommittees can
presumably use electronic means of sharing drafts, web-based
communications, listserv sharing of comments with “reply all” feedback,
asynchronous posting of drafts for comments in a “virtual” meeting, etc.
Then the work of the subcommittee would come to the scheduled FACA
meeting for discussion and potential ratification. Note that the advice does
not move from the subcommittee to the agency staff members.
46

Each of those CMOs who mentioned the issue spoke against the
recent congressional bill that would have eliminated the subcommittee
exception.47 In the 2009 House committee report, criticism of a loophole in
FACA cited the 2001 GSA rules and stated that “an advisory committee can
43

41 C.F.R. 102-3.35
41 C.F.R. 102-3.35
45
EPA, “Collaboration and FACA at EPA”, at 6
46
41 C.F.R. 102-3.160(a), “convened solely to gather information, conduct research, or analyze relevant
issues and facts in preparation for a meeting of the advisory committee, or to draft position papers for
deliberation by the advisory committee…” and see 41 C.F.R. 102-3.35, “report to a parent advisory
committee and not directly to a Federal officer or agency”.
47
H.R. 1320 §3(b), passed House but died in Senate committee, 111 th Cong. 2d Sess. (2010).
44

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avoid the open meeting and disclosure requirements of FACA by conducting
its business through subcommittees.”48 The CMOs believe that efficient and
timely drafting by an exempt subcommittee makes the main FACA
committee more productive. Loss of that flexibility was seen as an inhibition
to the function of rendering timely advice.
C. Future Option of Asynchronous Web-Posting “Virtual Meetings”
ACUS staff prepared a separate report discussing the possibility of an
asynchronous web meeting wherein Committee members would discuss
committee business in a web forum over the course of several days. Access
information for the web forum would be announced in advance in the
Federal Register, and members of the public would be able to view all
postings on the forum and submit comments for consideration by the
Committee. A more extensive discussion of this proposal appears in a
separate report prepared by Reeve Bull of the ACUS staff.49 In addition, the
author of the present report asked survey respondents about whether they
have conducted meetings of this type or would find the ability to conduct
such meetings beneficial, the responses to which are summarized below.
For those CMOs willing to have a longer interview, we asked about
the use of “virtual” meetings using internet technology and non-concurrent
comments submitted from remote locations of the committee members. GSA
rules allow a teleconference or videoconference, including a webcast.50
Could an agency give notice that it will “host” a meeting of an advisory
committee that occurs solely on line, over a 5-day period, with comments
received and responded to, then reaching a consensus by vote of the
committee members on the 5th day, all of it on line but under the direction of
a designated federal official as “moderator”? No respondent among the
CMOs had experience with such a meeting that would be wholly separate
from an in-person session.
NASA cautioned that any deliberations done outside of a physical
meeting would be “possible” but “must have public access, e.g., dial-in
meet-me line” and must have Federal Register notice.51 Several expressed
48

H. Rept. 111-135 at 3, Federal Advisory Committee Act Amendments of 2009”, 111 th Cong. 1st Sess.
(2009)
49
Available at http://www.acus.gov/research/the-conference-current-projects/faca-in-the-21st-century/.
50
41 C.F.R. 102-3.140(e).
51
Presentation to NASA Advisory Council by P. Diane Rausch, NASA CMO at 13 (April 2010)

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concern that FACA‟s command that52 “No advisory committee shall conduct
any meeting in the absence of” the DFO would prevent a meeting at which
the DFO was not continuously “present.” The agency implementing rules
appear to require the DFO to be present (in the physical sense) at a site from
which the DFO could keep the discussion within the agenda about which
notice was given.53 For example, NASA follows the GSA rules: “An
advisory committee shall not conduct a meeting in the absence of the DFO.
The DFO may also adjourn any meeting, when the DFO believes it to be in
the public interest.”54
The virtual web-only meeting saves a great deal of overhead cost for
the agency in a difficult budget climate. Records of the inputs to the virtual
meeting would be retained, certified by the DFO, and posted on the agency
website.55 The public could read the web notices, follow the web discussion
and send in their comments to the DFO at a designated URL, and once
cleared by the DFO, the comments would be accessible through a button on
the committee‟s web page that clearly defines these inputs as public
comments, not a reflection of committee views.
No CMO reported in our interviews that an advisory committee had
asked them to allow the committee to hold meetings without the
contemporaneous physical presence of most of the members (though some
said that agency FACA committees occasionally allow the video or audio
“conferencing in” of members with individual needs or schedule problems,
into the location of the FACA committee session).
6. Conclusions
The purposes and overall functioning of FACA will remain valid as
the complexities of government continue to increase with health care,
financial and environmental programs, among others. External sources of
knowledge remain invaluable to bring a sense of realism to the policy
choices that are being considered by the agencies. Congress continues to
create advisory committees, and agencies continue to create discretionary
52

5 U.S.C. App. 2 §10(e)
See e.g. Dept. of Energy, DOE M 515.1-1 6(a)(3)(e), the DFO will “authorize the adjournment of any
committee meeting in the event of unwarranted departure from the agenda of the meeting or if adjournment
is determined to be in the public interest.” (Oct. 22, 2007)
54
NASA Office of International and Intergovernmental Relations, Subject: FACA Committees,
Revalidated 8/24/09, at 3.
55
41 C.F.R. 102-3.165.
53

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advisory committees, to meet the perceived needs of the agencies. The
agency “best practices” of 2011 include activities that follow each step of
the 2001 GSA rules, in order to keep the agency committees fully compliant.
But the efficient operation of advisory committees during depressed
budget years will drive some agencies to reduce committee utilization and
frequency. A trend to operate the advisory committee function, at lower
costs, using electronic means, is inevitable. Cost reduction through new
media use has confronted the limitation that certain desired “new media”
uses are potentially vulnerable to challenges under FACA.
The decision of an agency in 2011 to save costs on its advisory
committee operations is a reflection of budget pressures upon agency
managers. Several CMOs mentioned the agency-wide push for reduction in
“overhead cost” as a current problem for their committees. Across the board
cuts in areas other than direct program delivery make the FACA budget
susceptible to reductions. If the travel and lodging costs of the operation of a
committee can be reduced, through electronic alternative means of
conducting meetings, then an agency can do “more with less.”
The survey described in this report has led to the following
conclusions:
Agency managers who are technologically savvy know how to use
group electronic communications to obtain useful responsive information.
They are also aware that the evolution in dynamics of electronic interaction
is continuing with further expansion of hardware and software devices to
facilitate the exchange of views.
Within this set of persons, some adhere rigidly to the 1972 law and
2001 rule that require certain steps to be followed. They are unhappy with
the system but accept it. For them, caution and orthodoxy matter more than
responsiveness. They appear to be a minority among agency persons
interviewed.
The majority of those agency persons contacted ignore the 1972/2001
strictures until agency lawyers require them to do so. If asked, they will
utilize one of the end-run devices to avoid "consensus" and "collective"
feedback, which they perceive to be the triggers for FACA to apply.
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Even among those who perceive FACA to be an inhibiting factor in
agency access to external advice using new media and current public
practices with electronic communications, there was a strong reluctance to
press for change of FACA or its implementing regulations. Instead, it
appears that agencies have been very creative in finding means of avoiding
the FACA burdens to accommodate their needs for expert advice.
In sum, it appears that a variety of circumstances tend to inhibit
agency experimentation and use of evolving communications media and
practices to enhance access to outside expert advice:
1. Some agency managers simply do not have adequate information
about ways to utilize new media to reduce costs and increase their
access to advice.
2. Some agency managers know about these techniques, but fear they
will run afoul of FACA or the FACA regulations.
3. Some agency managers see no need to depart from established ways
of doing business with advisory committees.
4. Resources and currently available training have not been adequate for
equipping agency managers to make optimal use of new media.
Moreover, the apparent need for agency managers to create workaround
techniques to avoid FACA suggests strongly that some modification of
either the Act or the regulations would be beneficial.

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BIBLIOGRAPHY
H. Rept. 111-135, Federal Advisory Committee Act Amendments of 2009,
House Committee on Oversight and Govt. Reform, 111th Cong. 1st Sess.
(2009).
General Accounting Office, GAO-04-328, Federal Advisory Committee Act:
Additional Guidance Could Help Agencies Better Insure Independence and
Balance, April 2004.
Steven Balla and John Wright, Interest Groups, Advisory Committees and
Congressional Control of the Bureaucracy, 45 Am. J. Pol. Science, 799
(2001).
David Blockstein, How to Lose Your Political Virginity While keeping Your
Scientific Credibility, 52 BioScience 91 (Jan. 2002).
Kristi Branch and Judith Bradbury, Comparison of DOE and Army Advisory
Boards, 34 Policy Studies Jnl. 723 (2006).
Mark Brown, The Politics of Representation on Government Advisory
Committees, Political Research Qtly. 547 (2008).
Eileen Burgin, Dollars, Disease and Democracy, 24 Politics & The Life
Sciences 43 (2006).
Benjamin Cramer, The Power of Secrecy and the Secrecy of Power: FACA
and the National Energy Policy Development Group, 13 Comm. Law &
Policy 183 (2008).
Clint Handler, What We Don‟t Know Has Hurt Us, Columbia Journalism
Rev. 28 (Jan. 2009).
Rebecca Long & Thomas Beierle, The Federal Advisory Committee Act &
Public Participation in Environmental Policy, Resources for the Future,
Discussion paper 99-17 (1999).
Gerald Markowitz & David Rosner, Politicizing Science: The case of the
Bush Administration‟s Influence on the Lead Advisory Panel at the Centers
for Disease Control, 24 J. Pub. Health Policy 105 (2006).
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Eric Meslin, The President‟s Council: Fair and Balanced?, Hastings center
Report 6 (March 2004).
Marc Miller & Gregory Aplet, Applying Legal Sunshine to the Hidden
Regulation of Biological Control, 35 Biological Control 358 (2005).
Michael Mongan, Fixing FACA, 58 Stanford L. Rev. 895 (2005).
Sidney Shapiro & Rena Steinzor, The People‟s Agent: Executive Branch
Secrecy and Accountability in an Age of Terrorism, 69 Law & Contemp.
Problems 99 (2006).
Stuart Shapiro, Procedural Control of the Bureaucracy, Peer review, and
Epistemic Drift, 17 Jnl. Pub. Admin. Research & Theory 535 (2006).
Jean Smith, The structure, role and procedures of the U.S. Advisory
Committee on Immunization Practices, 285 Vaccine A68 (2010).
Bethany Spielman, Should Consensus be the „Commission Method‟ In the
U.S.? The Perspective of the Federal Advisory Committee Act, Regulations
and Case Law, 17 Bioethics 1467 (2003).
Robert Steinbrook, Science, Politics and Federal Advisory Committees, 350
New Eng. J. Med. 1454 (2004).

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