Th
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Reev
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Attorn
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Confereence of tthe Unitted
States
S
Finaal Reportt: March 110, 2014
This report was prepared for the con
nsideration of thee Administrativee Conference of tthe United Statess. The views
expreessed are those of
o the author and
d do not necessa
arily reflect thosee of the members
rs of the Confereence or its
comm
mittees.

ADMIN
NISTRAT
TIVE CONF
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E
OF TH
HE UNITED
D STATES
S

March 10, 2014

The Government in the Sunshine Act in the 21st Century
Reeve T. Bull1

Table of Contents
INTRODUCTION.............................................................................................................................................. 2
OVERVIEW OF THE GOVERNMENT IN THE SUNSHINE ACT.................................................................... 5

I.
A.

Definition of “Agency” ..................................................................................................................... 5

B.

Definition of “Meeting” .................................................................................................................... 6

C.

Notational Voting, Staff Meetings, and Seriatim Meetings .............................................................. 9

D.

Opportunities and Challenges Created by “New Media” ............................................................... 12

E.

Past ACUS Recommendations........................................................................................................ 14
SUMMARY AND ANALYSIS OF PROJECT RESEARCH............................................................................ 16

II.
A.

The Bell Surveys ............................................................................................................................. 17

B.

CIRA Discussions and Survey ........................................................................................................ 22

III.

RECOMMENDED “BEST PRACTICES” UNDER THE SUNSHINE ACT .................................................. 24

CONCLUSION ............................................................................................................................................... 40
Appendix A (Member Survey) ................................................................................................................... 41
Appendix B (General Counsel Survey) ...................................................................................................... 57
Appendix C (Responses to the CIRA Sunshine Act Survey) ..................................................................... 68
Appendix D (List of Agencies Subject to the Sunshine Act)...................................................................... 71

1

Attorney Advisor, Administrative Conference of the United States. The author prepared this report in his capacity
as Conference staff, but the views expressed are those of the author and do not necessarily reflect those of the
members of the Conference or its committees. The author wishes to thank Blair Druhan and Arjun Ravi for
invaluable research assistance conducted in connection with this project.

1

March 10, 2014
INTRODUCTION
In the late 1960s and early 1970s, an era characterized by the Watergate scandal, the
Vietnam War, and other high-profile events that eroded the confidence of the American public in
the good faith of their elected leaders, Congress passed a series of transparency laws designed to
bring greater accountability to the federal government. The first such law, the Freedom of
Information Act (FOIA),2 requires government agencies to provide access to agency documents
upon public request so long as one of a series of exceptions (protecting documents related to
national defense, trade secrets, and internal deliberative matters, amongst other things) is not
met.3 The second, the Federal Advisory Committee Act (FACA), applies to groups of
individuals including at least one non-federal employee that the President or agencies may
convene in order to obtain advice on substantive matters.4 FACA requires agencies to open
meetings to public attendance, to permit members of the public to submit written comments
and/or offer oral statements at committee meetings, and to make committee documents available
to members of the public upon request.5 The third, the Government in the Sunshine Act
(Sunshine Act), requires that meetings of multi-member agencies be held publicly.6
Though considerable ink has been spilt in the academic literature analyzing FOIA and the
question of public access to federal agency documents more generally, FACA and the Sunshine
Act have received relatively scant attention in scholarly writings.7 In 2011, the author of the
present report analyzed FACA and offered a series of recommendations to improve the Act.8
These formed the basis for Recommendation 2011-7, approved by the Administrative
Conference of the United States at its December 2011 Plenary Session. The Administrative
Conference also has undertaken a study of FOIA, focusing upon reducing FOIA litigation
through alternative dispute resolution techniques, the research for which is currently ongoing.9
The present report and its associated recommendations focus upon the Sunshine Act, seeking to
2

Pub. L. No. 89-487, 80 Stat. 250 (1966) (codified at 5 U.S.C. § 552).

3

Id. Importantly, if one of the various FOIA exceptions covers a particular requested document, the agency is
permitted to withhold it, but it is not required to do so and may voluntarily choose to release it nevertheless.
Chrysler Corp. v. Brown, 441 U.S. 281, 293–94 (1979).
4

Pub. L. No. 92-463, 86 Stat. 770 (1972) (codified at 5 U.S.C. app.).

5

See generally id.; 41 C.F.R. § 102-3.

6

Pub. L. No. 94-409, 90 Stat. 1241 (1976) (5 U.S.C. § 552b).

7

According to a Lexis search conducted by Administrative Conference summer intern Arjun Ravi, since 1995, 348
law review articles have mentioned the Government in the Sunshine Act, 440 mentioned the Federal Advisory
Committee Act, and 7032 mentioned the Freedom of Information Act.

8

Reeve T. Bull, The Federal Advisory Committee Act: Issues and Proposed Reforms (Sept. 12, 2012), available at
http://www.acus.gov/sites/default/files/documents/COCG-Reeve-Bull-Draft-FACA-Report-9-12-11.pdf.
9

Administrative Conference of the United States, Reducing FOIA Litigation through Targeted ADR Strategies,
available at http://www.acus.gov/research-projects/reducing-foia-litigation-through-targeted-adr-strategies.

2

March 10, 2014
highlight best practices that can enhance the transparency of multi-member agencies without
burdening those agencies’ ability to meet efficiently and expeditiously.
Like FOIA and FACA, the Sunshine Act has fostered widespread public expectations that
government agencies must operate with perfect openness and transparency, an ideal that often
outstrips reality. Though the transparency laws create a default in favor of disclosure of
governmental documents and openness in high-level government meetings, agencies carefully
rely upon the various interstices and exceptions in the laws.10 In this light, advocates of
transparency have accused government agencies of circumventing the relevant laws by overexploiting the various exceptions and applying a hyper-technical reading of the applicable
statutes.11 Government agencies, in turn, have contended that expecting perfect transparency is
unrealistic and often counterproductive, chilling discussion and hamstringing agencies’ efforts to
conduct their work efficiently.12 President Obama has committed his Administration to an
“unprecedented level of openness in Government,”13 yet the memorandum announcing this
policy speaks in sweeping, general terms and does not provide specific directives to ensure that
agencies comply with both the spirit and the letter of the various transparency laws.
This report seeks to improve the transparency of open meetings conducted under the
Sunshine Act by highlighting opportunities created by new technologies. It does not propose any
amendment to current law but rather identifies mechanisms by which agencies can promote
greater transparency without expending excessive agency resources or introducing inefficiencies
into the decisionmaking process. Though many have called for substantial reforms to the
Sunshine Act, ranging from shelving the law entirely to strengthening it to compel agencies to
conduct much more of their business in the public gaze, any such overhaul of existing legislation
necessarily requires a careful balance of competing interests and can result in unforeseen
10

In fiscal year 2010, 72% of the meetings subject to FACA were either completely or partially closed pursuant to
one of the FACA exceptions. Bull, supra note 8, at 29 n.181. The surveys conducted for the present project
indicate that only 17 of 37 responding multi-member agencies fully opened 50% or more of their meetings to public
attendance in the period from 2007–10. See Appendix B (General Counsel Survey) at 62 (Question 12(A)).
11

See, e.g., Lucy Dalglish, Society of Professional Journalists, National Freedom of Information Committee,
Statement at a Hearing of the Special Committee to Review the Government in the Sunshine Act (Sept. 12, 1995)
(“[W]e strongly urge that the people who are covered by the law don’t change the law to accommodate the people
who may be offended or intimidated by its intent. Public knowledge is essentially to the democratic process.
Information is knowledge and knowledge is power.”); William B. Ketter, American Society of Newspaper Editors,
Statement at a Hearing of the Special Committee to Review the Government in the Sunshine Act (Sept. 12, 1995)
(“In our view it is not the Act itself that has stifled the deliberative process, rather the blame lies with the agencies
themselves for their willful refusal to embrace the clear intent of the Sunshine Act.”).
12

See, e.g., Steven M.H. Wallman, SEC Commissioner, Statement at a Hearing of the Special Committee to Review
the Government in the Sunshine Act (Sept. 12, 1995) (“I believe the Act has had the unintended and adverse effect
of substantially reducing the ability—some might say the willingness . . .—of agency members to deliberate jointly
in a full and appropriate manner.”).
13

Barack H. Obama, Memorandum for the Heads of Executive Departments and Agencies re Transparency and
Open Government, 74 Fed. Reg. 4685 (Jan. 26, 2009).

3

March 10, 2014
consequences that arise from disturbing an existing equilibrium. The research undergirding this
report suggests that, though the existing law creates frustrations for both multi-member agencies
and members of the public alike, it more or less strikes a reasonable balance between openness
and efficiency that has promoted increased transparency without hobbling agencies in their
efforts to conduct agency business expeditiously. Nevertheless, the research has also identified a
series of relatively modest innovations agencies can implement to ensure that they fully exploit
new media technologies, innovations that can significantly enhance the ability of the public to
understand, track, and participate in agencies’ work while imposing minimal burdens on the
agencies themselves.
The report is divided into three sections. The first section provides a brief overview of
the Act, drawing heavily from an earlier ACUS publication, An Interpretive Guide to the
Government in the Sunshine Act.14 The second section offers an overview of three streams of
research that undergird the report: (a) the work of the Special Committee to Review the
Government in the Sunshine Act that the Administrative Conference convened in 1995; (b)
surveys conducted by Professor Bernard Bell in 2011–12 on behalf of the Conference; and (c)
the results of an informal survey that the author circulated to members of the Council of
Independent Regulatory Agencies (a body of independent regulatory agency representatives
chaired by the Conference, most of which are structured as multi-member boards or commissions
subject to the Act). This second section of the report concludes that the Sunshine Act, though it
has created certain inefficiencies for agencies while disappointing advocates of enhanced
government transparency, nevertheless strikes a reasonable balance between competing values of
openness and efficiency. The third and final section of the report offers a set of
recommendations designed to promote the optimal use of new media by multi-member agencies,
identifying relatively low-cost innovations that significantly enhance transparency.
When Louis Brandeis uttered his famous remark that “sunlight is said to be the best of
disinfectants,”15 he perhaps did not foresee the complex ramifications that result from exposing
government operations to the “sunlight” of public and media scrutiny. To carry the analogy a bit
further, so long as the whole of a given area is not perfectly illuminated, bringing sunlight to one
region may simply push activity into the shadows, a phenomenon illustrated by agencies’ heavy
use of the various Sunshine Act exemptions. Further, though sunlight may indeed be a powerful
disinfectant, it also can cause injury if focused too intensely, and achieving perfect transparency
is likely neither feasible nor desirable. For instance, forcing agency heads to conduct
preliminary discussions or brainstorming sessions publicly may chill conversation insofar as
14

RICHARD K. BERG, STEPHEN H. KLITZMAN, & GARY J. EDLES, AN INTERPRETIVE GUIDE TO THE GOVERNMENT IN
THE SUNSHINE ACT (2d ed. 2005) (hereafter “BERG ET AL.”). This definitive, well-regarded treatise offers a

comprehensive, detailed overview of the Act, and the author would commend it to those who seek a more extensive
analysis of the Act.
15

Louis D. Brandeis, What Publicity Can Do, HARPER’S WEEKLY, Dec. 20, 1913, at 10.

4

March 10, 2014
officials are reluctant to offer tentative observations for fear of appearing uninformed or
indecisive. Extending Brandeis’s exceptional metaphor one step more (and focusing upon
artificial rather than natural lighting), the reforms in this recommendation can be thought of as
replacing incandescent light bulbs with more modern, efficient fluorescent lamps. It does not
seek to readjust the balance between illuminated and abumbrated regions but rather focuses upon
ensuring that lighted areas are irradiated in the most efficient manner possible. By exploiting
new technologies, agencies can ensure that they are meeting the 21st century expectations of
stakeholders while imposing a negligible burden upon their operations (and, in some cases, likely
capturing cost savings and greatly improving the efficiency of their efforts).
I.

OVERVIEW OF THE GOVERNMENT IN THE SUNSHINE ACT

The Government in the Sunshine Act requires that meetings of multi-member agencies be
announced to the public in advance and that members of the public be permitted to attend such
meetings.16 Notwithstanding its relatively straightforward language, the statute has given rise to
a number of interpretive issues, the resolution of which has defined the impact of the Act. This
section analyzes several of the major questions that have arisen in the interpretation of the
Sunshine Act, focusing particularly on activities that fall outside of the reach of the statute (e.g.,
notational voting, seriatim meetings, staff-level meetings).
A.

Definition of “Agency”

The Sunshine Act applies to every agency “headed by a collegial body composed of two
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 any subdivision thereof authorized to act on
behalf of the agency.”17 As an initial matter, the statutory drafters’ decision to limit the Act’s
applicability to multi-member agencies merits some scrutiny: Brandeis’s insight regarding the
salubrious effects of “sunshine” is presumably not limited only to agencies headed by a board or
commission rather than a single chairperson. Nevertheless, though the chairperson of an agency
not subject to the Act may meet with his or her staff prior to reaching a conclusion, the ultimate
decisionmaking authority ultimately lies exclusively with the chairperson rather than with a
panel of individuals. Multi-member agencies, by contrast, make decisions in a more
collaborative manner, and the statutory framers felt that members of the public should be able to
observe this decisionmaking process.
Though the definition of “agency” provided in the Act is relatively straightforward and
resolves most ambiguities, a handful of agencies have leadership structures that are not easily
characterized for purposes of determining the Act’s applicability. For instance, the Court of
16

5 U.S.C. § 552b.

17

Id. § 552b(a)(1).

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March 10, 2014
Appeals for the District of Columbia Circuit has held that agencies whose sole function is to
advise and assist the President are not subject to the Act.18 Agencies headed by individuals who
serve on the agency at issue in an ex oficio capacity as a corollary to their service in another
agency (to which they have been appointed by the President and confirmed by the Senate) also
are not subject to the Act.19 Finally, in some instances Congress has specifically directed certain
agencies that do not otherwise meet the statutory definition of “agency” to comply with the
Act,20 and a handful of otherwise exempt agencies voluntarily comply with some or all of the
provisions of the Act.21
Though the Act itself does not enumerate the various agencies to which it applies,
Richard Berg, Stephen Klitzman, and Gary Edles have compiled such a list of agencies in An
Interpretive Guide to the Government in the Sunshine Act.22 This list is likely the most
comprehensive enumeration of agencies subject to the Act that is available to practitioners,
though certain agencies subject to the Act may have arisen after the most recent update to the
list.
B.

Definition of “Meeting”

Likely no interpretive issue related to the Sunshine Act has proven more contentious than
the definition of the term “meeting.” The Act itself provides some guidance, defining “meeting”
as “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 official agency business.”23 Numerous interpretive issues have arisen from this
ostensibly straightforward definition. First, though the Act does not explicitly provide for a
quorum requirement, the Senate Report accompanying the Act provides that any agency action
subject to the Act must be taken by a group that includes a sufficiently large number of members
to obligate the agency.24 Agency quorum requirements are ordinarily established in the agency’s
statute; in the absence of a statutory provision, quorum requirements can be set by agency

18

Rushforth v. Council of Econ. Advisers, 762 F.2d 1038, 1043 (D.C. Cir. 1985).

19

Symons v. Chrysler Loan Guar. Bd., 670 F.2d 238 (D.C. Cir. 1981) (holding that the Loan Guarantee Board,
whose voting members included the Secretary of the Treasury, the Chairman of the Board of Governors of the
Federal Reserve System, and the Comptroller General, was not subject to the Sunshine Act).

20

See 42 U.S.C. § 8103(i) (extending the Sunshine Act to the Neighborhood Reinvestment Corporation).

21

BERG ET AL., supra note 14, at 2 (noting that the Federal Open Market Committee and the U.S. Commission on
Civil Rights voluntarily comply with all provisions of the Sunshine Act).

22

Id. at Appendix D (compiling the Sunshine Act regulations for those agencies subject to the Act); see also DAVID
E. LEWIS & JENNIFER L. SELIN, SOURCEBOOK OF UNITED STATES EXECUTIVE AGENCIES 127 (1st ed., 2d printing
2013) (providing a list of agencies subject to the Sunshine Act in Table 17).
23

5 U.S.C. § 552b(a)(2).

24

S. REP. NO. 94-354, at 19 (1975).

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March 10, 2014
regulation.25 Some agencies have statutory authority to delegate decisional responsibility to an
individual or unit smaller than a quorum of the agency itself.26
Determining the type of gathering of a quorum of board or commission members that
implicates the Sunshine Act is a far more difficult exercise. One can envision two extremes. At
one end of the spectrum, the law could provide that any event in which a quorum of members
convenes to discuss any issue (whether gathering in-person or via electronic means such as
telephone or web forum) triggers the Act. At the other extreme, the law could be that a
“meeting” subject to the Act arises only when a quorum of members actually votes on agency
business (with any pre-meeting discussions being exempt so long as they do not obligate the
agency to any course of action). Ultimately, the legislative history and case law interpreting the
Act draw the line somewhere between those stark alternatives, though the resulting standard is
not free of ambiguity and has created some uncertainty for agencies attempting to comply with
the Act.
The legislative history of the Sunshine Act provides a series of broad-brush principles
that help define the scope of the covered “meetings,” which can be summarized as follows:






25

A quorum of agency members must interact as a group; a monologue in which
one board or commission member merely states his or her views to others does
not trigger the Act, even if a quorum of agency members is present.27
A meeting in which a quorum of agency members discusses procedural issues,
casual topics, or any other matter that does not concern the substance of the
agency’s business is not subject to the Act. As the Senate Report provides, “[t]he
words ‘deliberation’ and ‘conduct’ were carefully chosen to indicate that some
degree of formality is required before a gathering is considered a meeting for
purposes of this section.”28
On the other hand, agency members need not necessarily vote on official agency
business for a gathering to qualify as a “meeting” under the Act. The Senate
Report states that “[t]he meetings open by [the Sunshine Act] are not intended to
be merely reruns staged for the public after agency members have discussed the

Fed. Trade Comm’n v. Flotill Products, 389 U.S. 171, 181–82 (1967).

26

5 U.S.C. § 552b(a)(1) (stating that the Act applies to “any subdivision [of the board or commission] authorized to
act on behalf of the agency”); New Process Steel, L.P. v. Nat’l Labor Relations Bd., 560 U.S. 674, 679–83 (2010).

27

S. Rep. No. 94-354, at 18 (1975). In this sense, the Sunshine Act is quite similar to the Federal Advisory
Committee Act (FACA). Under the so-called “individual advice” exemption to FACA, an advisory committee need
not conduct its meetings openly so long as each member simply states his or her views individually and the
committee does not engage in broader group interactions. Ass’n of Am. Physicians & Surgeons, Inc. v. Clinton, 997
F.2d 898, 913 (D.C. Cir. 1993).

28

S. Rep. No. 94-354, at 18 (1975).

7

March 10, 2014
issue in private and predetermined their views. The whole decisionmaking
process, not merely its results, must be exposed to public scrutiny.”29
Though the legislative history draws a somewhat clear line of demarcation between
activities that clearly implicate the Act (e.g., a quorum of members’ discussing and voting upon
official agency decisions) and those that clearly do not (e.g., discussing when to schedule the
next open meeting), certain agency member interactions fall into a nebulous intermediate area
that does not clearly lie within or outside of the ambit of the Act. For instance, the legislative
history does not clearly address whether a “brainstorming” session in which a quorum of agency
members tentatively debates potential ideas without committing the agency to any course of
action would fall under the Act. On the one hand, such a meeting clearly does not dispose of
agency business insofar as at least one or more additional meetings would be required to act
upon the preliminary ideas discussed. On the other hand, the session indubitably advances the
substantive business of the agency, and it therefore arguably should fall within the scope of the
Act.
The Supreme Court confronted a similar question in FCC v. ITT World Communications,
Inc., the only Supreme Court decision to address the scope of the Sunshine Act. A group of
commissioners of the Federal Communications Commission (which did not constitute a full
quorum of the agency but did comprise a quorum of a specific committee) met to discuss procompetitive licensing policy and cooperation between the agency and its overseas counterparts.31
The Unites States Court of Appeals for the District of Columbia Circuit held that such meetings
fell under the Act,32 but the Supreme Court unanimously reversed.33 Since these preliminary
discussions did not “effectively predetermine official actions” of the agency, they did not trigger
the Act.34
30

In light of ITT World, “preliminary” discussions that do not lead immediately to formal
decisions of the agency are not subject to the Act. Unfortunately, the decision does not provide
much additional guidance, beyond that contained in the statutory text and the legislative history,
for determining precisely when an exempt “preliminary” discussion evolves into an exchange
designed to dispose of agency business. As a consequence, as will be explored in Section II,
many agencies have taken a highly cautious approach to arranging discussions that will include a
quorum of agency members. To build upon the aforementioned hypothetical, a “brainstorming”
29

Id.

30

466 U.S. 463 (1984).

31

Id. at 465.

32

ITT World Commc’ns v. Fed. Commc’ns Comm’n, 699 F.2d 1219, 1249 (D.C. Cir. 1983).

33

ITT World, 466 U.S. at 474.

34

Id. at 471.

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March 10, 2014
session perhaps falls outside the scope of the Act under the authority of ITT World insofar as it,
like the preliminary exchanges between agency members relating to international coordination at
issue in the case, does not “effectively predetermine official actions” of the agency.35
Nevertheless, this conclusion does not follow ineluctably from the case law or the statute (one
could certainly contend that a session wherein members debate ideas is the first step in the
decisionmaking process of the agency). More importantly, even though a tentative discussion of
ideas probably is exempt,36 such a meeting may evolve organically into a session wherein
members weigh the merits and drawbacks of the strongest ideas and perhaps even commit the
agency to pursue some of the more promising proposals, which almost certainly would trigger
the Act. To avoid this potentiality, agencies may choose simply to avoid holding such sessions.
C.

Notational Voting, Staff Meetings, and Seriatim Meetings

In light of the exceedingly vague definition of “meetings” that emerges from the
Sunshine Act, its legislative history, and interpreting case law, agencies have understandably
sought “safe harbors” that permit members to conduct business without the haunting suspicion
that any given interaction may run afoul of the Sunshine Act. As a general matter, these “safe
harbors” take advantage of the quorum requirement under the Act: so long as any given
interaction involves less than a quorum of members engaging in group consideration of a
substantive issue, the Sunshine Act is not triggered.
The first such “safe harbor” is the use of so-called notational voting. In Communications
Systems, Inc. v. Federal Communications Commission,37 a case that emerged shortly after the
passage of the Sunshine Act, the United States Court of Appeals for the District of Columbia
Circuit examined the Act’s legislative history to conclude that an agency does not violate the
statute when its members receive written materials, review the same, and then provide their votes

35

Id.

36

In February 1987, the American Bar Association House of Delegates approved a recommendation that provided
that the following exchanges amongst agency members should generally be exempt from the Sunshine Act (unless if
they become “sufficiently focused on discrete proposals or issues as to cause or be likely to cause the individual
participating (agency) members to form reasonably firm positions regarding matters pending or likely to arise before
the agency”): “(a) spontaneous casual discussions among agency members of a subject of common interest; (b)
briefings of agency members by staff or outsiders; . . . (c) general discussions of subjects which are relevant to an
agency’s responsibilities but which do not pose specific problems for agency resolution; and (d) exploratory
discussions, so long as they are preliminary in nature, there are no pending proposals for agency action, and the
merits of any proposed action would be open to full consideration at a later time.” American Bar Association,
Report and Recommendation on the Government in the Sunshine Act 1 (Feb. 1987). These general conclusions are
virtually beyond cavil in light of ITT World, but agencies may encounter significant difficulties in attempting to
determine whether specific interactions fall under the rather nebulous headings “spontaneous casual discussions,”
“briefings,” “general discussions,” and “exploratory discussions.”

37

595 F.2d 797 (D.C. Cir. 1978).

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March 10, 2014
in writing.38 Specifically, the relevant conference committee report provided that the Act “does
not prevent agency members from considering individual business that is circulated to them
sequentially in writing.”39 Since this time, federal courts have repeatedly rejected challenges to
agencies’ usage of the notational voting procedure.40
In theory, the notational voting “exception” could practically swallow the “rule” of
openness created by the Sunshine Act. So long as agency members are willing to sacrifice
whatever synergies may arise from conducting in-person meetings and the collegiality that
develops from regularly convening board or commission members, an agency could presumably
dispose of all business via written vote. In practice, many agencies permit any member to
require an open meeting if he or she feels that a particular issue is sufficiently important to be
discussed publicly rather than being addressed via notational voting.41 This procedure
diminishes the risk that an agency would rely exclusively on notational voting, for any one
commissioner or board member can elevate any matter that he or she deems worthy of public
discussion. Nevertheless, so long as all members accede in the use of notational voting, the Act
itself does not prohibit agencies from deploying such procedures to address even substantive
matters.
Another “safe harbor” that avoids triggering the Act is the disposition of agency business
through staff-level meetings. Each member of a multi-member agency typically has a personal
staff (with chairpersons of such agencies typically having a larger staff),42 and different
members’ staff can meet with one another to discuss substantive issues outside of an open
meeting under the Sunshine Act.43 The staff representatives can then report to their respective
members and thereby share the views expressed by other members’ staff. Again, this process
creates a potentially glaring loophole that permits agencies to circumvent the Act in virtually all
cases. So long as each member trusts his or her staff members to faithfully and effectively
advocate his or her views, members could effectively deputize staff members to act as their
agents in discussing potential agency business and could then ratify the conclusions reached by
38

Id. at 798–99, 801.

39

H.R. Rep. 94-1441, 94th Cong. (1976); see also Commc’ns Sys., 595 F.2d at 800 (quoting the conference
committee report as well as a statement by Congressman Flowers to the same effect).

40

BERG ET AL., supra note 14, at 32–33 (citing various circuit court decisions upholding the use of notational
voting).

41

See, e.g., 17 C.F.R. § 200.42(b) (SEC); 39 C.F.R. § 6.7(c) (USPS).

42

See, e.g., FCC LEADERSHIP, http://www.fcc.gov/leadership (last visited July 31, 2013) (listing a higher number of
personal staff for agency chairmen than for other commissioners); COMMISSION MEMBERS,
https://www.ferc.gov/about/com-mem.asp (last visited July 31, 2013) (same); THE COMMISSION,
http://www.nrc.gov/about-nrc/organization/commfuncdesc.html (last visited July 31, 2013) (same).
43

Trans World Airlines, Inc. v. Nat’l Mediation Bd., 81-0823, 1982 WL 2077, at *5 (D.D.C. July 30, 1982) (“[T]he
Act does not require the Board to convene to transact business which is routinely conducted on staff initiative
without board advice.”); Richard J. Pierce, Jr. et al., Administrative Law and Process 479 (3d ed. 1999).

10

March 10, 2014
the staff members after-the-fact through notational vote, all without triggering the Sunshine Act.
As will be discussed in section II, the research conducted in connection with this project does not
suggest that agencies are undermining the spirit of the Act by overreliance upon staff-level
exchanges; though important exchanges do occur amongst staff representatives, agency survey
respondents indicate that those communications merely provide additional information for board
or commission members who retain all decisionmaking powers. Nevertheless, the mere
existence of this potentially significant gap in the coverage of the Act has raised concerns on the
part of government transparency advocates.44
A final “safe harbor” under the Act consists of a series of meetings between small groups
of commissioners or board members, none of which involves a sufficiently large number of
participants to comprise a quorum. This “exemption” is absolutely sine qua non for the smooth
functioning of multi-member agencies; if every discussion between two or more members could
potentially trigger the Act, members would effectively be required to insulate themselves from
any interactions with their colleagues or ensure that any conversations they held were completely
unrelated to the work of the agency.45 Nevertheless, like the other “safe harbors,” it potentially
opens the door to abuses. Specifically, members could merely hold a series of sub-quorum
meetings to resolve all substantive agency business, obviating the need to hold any open
meeting.46 Of course, this mechanism of decisionmaking is exceedingly inefficient. For
instance, in a hypothetical five-member board that defines a quorum as three members, the
members would need to hold a series of 10 meetings in order for each member to meet with each
other member at least once.47 In this light, agencies likely would gain very little benefit from
holding such “serial meetings,” and the research conducted in connection with this report
provided no evidence that agencies have abused their ability to hold sub-quorum discussions.48

44

See, e.g., Fred Wszolek, Dark Clouds Over the Sunshine Act, WORKFORCE FAIRNESS INSTITUTE (July 18, 2011),
http://www.biglaborbailout.com/2011/07/18/dark-clouds-over-the-sunshine-act/.

45

Unfortunately, agencies led by a three member board frequently confront precisely this scenario. So long as the
agency defines a quorum as a group consisting of a majority of voting members, any meeting of two commissioners
comprises a quorum. In the research Professor Bell conducted in support of this project, several survey respondents
proposed amendments to the Act to provide special considerations for three member boards in order to facilitate
one-on-one interactions by board members. Appendix A (Member Survey) at 52, 54 (Question 25); Appendix B
(General Counsel Survey) at 67 (Question 18).

46

Administrative Conference of the United States, Report and Recommendation by the Special Committee to
Review the Government in the Sunshine Act, 49 ADMIN. L. REV. 421, 423 (1997).

47

Id. Specifically, if the members are labeled A–E, each of the following meetings would need to occur: A-B, A-C,
A-D, A-E, B-C, B-D, B-E, C-D- C-E, D-E. If any additional issue or set of issues emerged in subsequent one-onone meetings, then pairs of members that had previously met would need to hold one or more additional meetings,
thereby significantly increasing the total number of meetings to be held.

48

See infra section II.

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March 10, 2014
D.

Opportunities and Challenges Created by “New Media”

Since the enactment of the Government in the Sunshine Act in 1976, a number of
developments in the field of telecommunications have fundamentally altered both the traditional
modes of interpersonal communication and the expectations of the general public concerning the
availability of information.49 These innovations create both opportunities and potential
minefields for agencies subject to the Act. On the one hand, the use of technologies such as
email, discussion boards, blogs, social media (including Facebook and Twitter), and “apps” for
mobile Internet can significantly enhance agency members’ ability to communicate both with
one another and with the broader public. On the other hand, the novel technologies create two
salient risks. First, members may inadvertently violate the Sunshine Act by exchanging
substantive information in an electronic forum that is inaccessible to the general public. Second,
the public has come to expect a certain level of media sophistication from public institutions, and
agencies that fail to exploit technological developments and engage the public via the
communication methods upon which they regularly rely risk alienating stakeholders and the
public more broadly.
Though by no means exhaustive, the following list catalogues some of the Sunshine Actrelated difficulties agencies may encounter in attempting to adapt their operations to the rise of
21st century telecommunications technology:




Email communication: Using the “reply all” feature of most modern email
programs, agency members can easily communicate with several or all of their
colleagues simultaneously. If the email exchange takes place over an extended
period of time (e.g., several days), it is closely analogous to notational voting,
which falls outside of the Act’s open meeting requirements.50 If, on the other
hand, the members engage in a relatively rapid exchange of messages (e.g., one
email reply sent every several seconds), then the interchange perhaps qualifies as
a “virtual meeting” that would be subject to the Act.51
Chat and Online Discussion Boards: Were a quorum of agency members to
convene via a private chat room, any substantive discussion that disposed of
agency business would almost certainly be covered by the Sunshine Act. An
alternative may be to hold such a discussion via a publicly accessible online
discussion board, but the virtual meeting would need to be announced in advance

49

See, e.g., Transparency & Open Government, 74 Fed. Reg. 4685, 4685 (Jan. 26, 2009) (Obama memorandum
promising to create “an unprecedented level of openness in government”).

50

Commc’ns Sys., Inc. v. Fed. Commc’ns Comm’n, 595 F.2d 797, 801 (D.C. Cir. 1978).

51

BERG ET AL., supra note 14, at 26–28 (noting that most state courts that have confronted the issue of simultaneous
electronic exchanges have held that such activities fall under the state sunshine laws, but also observing that few
federal agencies reported that the Sunshine Act inhibited their use of email).

12

March 10, 2014





via the Federal Register. Section III will explore possible mechanisms for
expanding the use of such public electronic discussions.
Posting Meeting Documents on the Web: Given its vintage, the Sunshine Act does
not contain any requirement that agencies post meeting related documents on the
web.52 Nevertheless, the general public has come to expect agencies to post all
relevant information concerning agency business online. To meet these
expectations, many agencies have created webpages that describe their meeting
processes and provide especially germane documents associated with those
meetings.53 Notwithstanding these innovations, agencies often face certain
challenges that may create a disconnect between public expectations and what the
agency can practicably provide. For instance, interested members of the public
may expect advanced copies of documents to be considered at open meetings, but
those documents may not always be finalized in time to permit pre-meeting
promulgation on the website. Similarly, there is a balance between providing the
most pertinent materials and drowning the public in a deluge of documents, many
of which may be only tangentially related to the matter at hand.
Webcasting Open Meetings: Since the rise of “YouTube,” “Livestream,” and
other web-based video streaming platforms, the public has increasingly come to
expect the ability to view even relatively minor official governmental meetings
either in real-time or at least in an archived video made available on the web
after-the-fact.54 Nevertheless, webcasting agency meetings is not so simple as
placing an inexpensive webcam at the back of the room and posting the product to
YouTube. Under the Section 508 Amendment to the Rehabilitation Act of
1973,55 federal agencies must ensure that the electronic information they provide
is accessible to persons with disabilities. Thus, a web video must generally

52

Indeed, unlike the Federal Advisory Committee Act, which at least requires that committee documents be made
publicly available upon request (though obviously does not address electronic availability of such documents, given
that the statute predates the Sunshine Act), 5 U.S.C. App. § 10(b), the Sunshine Act does not even address the public
availability of meeting documents, other than requiring that the minutes of a closed meeting identify the documents
considered at said meeting. 5 U.S.C. § 552b(f)(1).

53

See, e.g., Nuclear Regulatory Commission, Commission Meetings, Agendas, Slides, Transcripts, Meeting SRMs,
and Full Written Explanation for Closed Meetings for 2013, available at http://www.nrc.gov/reading-rm/doccollections/commission/tr/2013/ (last updated June 17, 2013); Federal Communications Commission, Open
Meetings, available at http://www.fcc.gov/open-meetings (last visited June 25, 2013).
54

Undoubtedly, the rise of C-SPAN contributed to the general public expectation of access to deliberations of
governmental bodies, but the traditional medium of cable television limited the availability of such broadcasts to the
most significant events (focusing largely upon sessions of Congress and committee hearings). Web video, by
contrast, expands available bandwidth by multiple orders of magnitude, and even relatively minor governmental
meetings (e.g., state or local legislative sessions, meetings of federal agencies and advisory committees) can now be
inexpensively broadcast.

55

Workforce Investment Act of 1998, Pub. L. No. 105-222, 112 Stat. 936 (codified at 29 U.S.C. § 794d).

13

March 10, 2014
include captions to facilitate access by hearing-impaired individuals,56 and the
cost of transcribing such a video is not insubstantial. Thus, many agencies have
exhibited reluctance to fully embrace the possibilities for expanded public access
that web-video services have created.
In Section III, this report will grapple with some of the issues raised by these new media
advances. By proceeding circumspectly while nevertheless seeking to stay abreast of
technological developments and exploit the opportunities they create, agencies can both improve
the efficiency of their operations and satisfy reasonable expectations of members of the public
who seek greater involvement in the agencies’ work.
E.

Past ACUS Recommendations

The Administrative Conference has examined the Government in the Sunshine Act twice
in its history, resulting in one formal Conference recommendation and one recommendation of a
special committee convened to consider improvements to the Act (that was issued merely weeks
before the Conference closed its doors and therefore was never voted on by the Assembly). The
first Conference project to consider the Act resulted in Administrative Conference
Recommendation 84-3. Though it emerged only 8 years after the enactment of the Sunshine Act,
Recommendation 84-3 identified two of the most salient issues related to the implementation of
the Act that have continued to vex both agencies and their stakeholders for the last thirty years:
(a) the open meeting requirement has the potential effect of diminishing collegiality amongst
board or commission members, especially as “[i]n some agencies the pattern of decisionmaking
has shifted from collegial exchanges to one-on-one encounters, transmission of views through
staff, and exchanges of memoranda or notation procedure”57 and (b) discussions that occur in
open meetings are often relatively pro forma (likely due in part to the extensive use of notational
voting and other procedures to dispose of many issues prior to open meetings), and the public
often lacks access to relevant documents and other background information required to fully
comprehend the proceedings.58
In response to these concerns, the Conference offered two recommendations designed to
mitigate or eliminate these issues. First, it urged agencies to invoke the exemptions to the Act
only when “there is a substantial reason to do so” and to provide relevant background
information needed for public attendees to understand discussions at open meetings.59 Second, it
56

36 C.F.R. § 1194.24(c); United States Access Board, Video and Multimedia Products (1194.24), available at
http://www.access-board.gov/guidelines-and-standards/communications-a-it/about-the-section-508-standards/guideto-the-section-508-standards/video-and-multimedia-products-1194-24 (last visited Aug. 1, 2013) (“Video and
multimedia products that ‘support the agency’s mission’ are generally required to be captioned. . .”).
57
58
59

Administrative Conference of the United States, Recommendation 84-3, 49 Fed. Reg. 29942 (July 25, 1984).
Id.
Id. ¶ 1.

14

March 10, 2014
encouraged Congress to consider whether the existing Act strikes the optimal balance between
transparency and collegiality, and it suggested that “agency members be permitted some
opportunity to discuss the broad outlines of agency policies and priorities . . . in closed meetings,
when the discussions are preliminary in nature or pertain to matters . . . which are to be
considered in a public forum prior to final action.”60
In 1995, the Conference built upon the second recommendation in 84-3 by exploring the
circumstances under which agencies subject to the Act might be permitted to close certain
meetings.61 The Conference convened a special committee to address this issue, and it held a
series of open meetings and a public hearing at which it received input both from agency
officials and public advocates for government transparency.62 After reviewing this input, the
special committee concluded that the Act imposes a substantial burden on multi-member
agencies’ ability to dispose of agency business in an efficient manner, finding that:
While it may be permissible pursuant to a literal interpretation of “meeting” for a
quorum of agency members to conduct preliminary discussions on an issue, as a
practical matter it is extremely difficult for an agency member to make the
distinction between actions that actually dispose of agency business and those that
merely constitute preliminary discussions.63
As a consequence, agencies have made extensive use of “safe harbors” such as notational voting
to avoid inadvertently triggering the Act, and open meetings have largely devolved into sessions
for issuing formal statements concerning matters that have already been resolved in other
venues.64 Further, the Act has the perverse effect of actually discouraging informal discussions
amongst members of agencies (for fear that such discussions may ultimately develop into a
covered “meeting”), which undermines the very collegial, deliberative decisionmaking process
that is the raison d’etre of multi-member agencies.65

60

Id. ¶ 2.

61

The impetus for the 1995 project arose largely from a letter to the Chairperson of the Administrative Conference
signed by over a dozen current or former commissioners of agencies subject to the Sunshine Act and a second letter
from the members of the Federal Trade Commission, both urging the Conference to review the effectiveness of the
Act. Administrative Conference of the United States, Report and Recommendation by the Special Committee to
Review the Government in the Sunshine Act, 49 ADMIN. L. REV. 421, 421 (1997).

62

Id. at 422.

63

Id. at 423.

64

See id. (“Although there obviously are exceptions, and open meetings held under the current Act are valuable in
that they allow an agency to explain publicly the results of its prior decisionmaking, the Committee believes that,
generally, true collective decisionmaking does not occur at agency public meetings.”).

65

Id. at 424–25.

15

March 10, 2014
In order to resolve this dilemma, the special committee proposed a compromise solution
designed to improve the efficiency of agency decisonmaking while also improving upon the
transparency of the existing regime. Specifically, the committee recommended that Congress
establish a pilot program (lasting from five to seven years) that would allow members to meet
privately so long as they provide a detailed summary of the meeting no later than 5 days after it
has occurred.66 In exchange, pilot program participants would agree to refrain from using
notational voting on “important substantive matters” to the extent practicable, instead addressing
those issues in open meetings, and would “hold open public meetings, to the extent practicable,
at regular intervals, at which it would be in order for members to address issues discussed in
private sessions or items disposed of by notation.”67 If such a pilot program proved to be
successful, then the committee urged Congress to consider amending the Act accordingly.68
In addition to the pilot program, the special committee’s recommendation also contained
a handful of additional proposals for improving the administration of the Act. These included
(amongst other things): (a) proposing that Congress statutorily direct agencies to develop and
publish rules on the use of notational voting; (b) urging agencies to achieve greater transparency,
including publicizing information about upcoming meetings, releasing non-privileged documents
connected with meetings, and offering closed-circuit television coverage of meetings where
appropriate (which in today’s world would be on the Internet); and (c) encouraging Congress to
clarify that a separately noticed meeting is not required to continue to discuss matters initially
examined in a meeting closed under exemption 10 (which covers information related to an
agency’s participation in various adjudicative matters).69
The special committee issued its report and recommendation on October 10, 1995, but
the Administrative Conference was disbanded only three weeks later, after Congress defunded it.
As a consequence, the full Assembly of the Conference did not have an opportunity to consider
the committee’s recommendation in Plenary Session (the biannual Plenary Sessions typically
occur in June and December), and the recommendation was therefore never considered by the
Conference.
II.

SUMMARY AND ANALYSIS OF PROJECT RESEARCH

The research for this project occurred in two separate phases. In the first phase, Professor
Bernard Bell of the Rutgers-Newark School of Law conducted two surveys, the first of board or
66

Id. at 427 (the meeting summary “would indicate the date, time, participants, [and] subject matters discussed, and
[would contain] a review of the nature of the discussion”).

67

Id. at 427–28.

68

Id. at 428.

69

Id.

16

March 10, 2014
commission members at agencies subject to the Sunshine Act and the second of general counsels
at those agencies. In the second phase, I conducted a shorter survey distributed to the members
of the Council of Independent Regulatory Agencies (CIRA)70 and spoke with a number of
representatives from these agencies. This section analyzes the compiled research data and
presents broader conclusions to be drawn therefrom. In particular, it highlights innovations
related to new media identified by survey respondents. Section III then builds upon those
innovations by offering recommendations for all agencies to consider in their activities subject to
the Sunshine Act.
A.

The Bell Surveys

Over the course of 2011 and 2012, Professor Bell circulated two sets of online surveys to
representatives from agencies subject to the Sunshine Act. He distributed the first survey to the
board or commission members at each agency covered by the Act. He sent the second to the
general counsel at each of those agencies. Of the 67 agencies subject to the Act, 56 members
representing at least 24 different agencies responded to the first survey.71 General counsels from
40 agencies responded to the second survey.72 In this subsection, I highlight several of the most
salient conclusions to be drawn from both surveys. A more detailed summary of the results is
available in the appendices to the report: Appendix A presents the findings of the member
survey, and Appendix B does the same for the general counsel survey.
On the whole, the results of the Bell surveys support four overarching conclusions: (1)
agency members place comparatively little emphasis on meetings of board members as a source
of information about the views and positions of fellow members, whether those meetings are
conducted openly or are closed pursuant to one of the Sunshine Act exceptions; (2) agency
members find somewhat greater value in interactions that occur outside of such meetings,
including informal discussions amongst board or commission members and conferences between
such members and staff; (3) agencies have more or less reconciled themselves to the existence of
the Sunshine Act and do not generally recommend repealing or fundamentally altering it; and (4)
notwithstanding the lack of any overarching objections to the Act, agencies do have a number of
specific complaints and suggestions for improving the Act.
70

CIRA is a council for leaders of independent regulatory agencies that is chaired by the Administrative
Conference. Administrative Conference of the United States, Council of Independent Regulatory Agencies,
http://www.acus.gov/CIRA. It was first convened by Administrative Conference Chairman Loren A. Smith in 1982,
and it currently includes 21 member agencies (most of whom are subject to the Sunshine Act). Id. CIRA meets on a
quarterly basis to discuss issues of mutual concern to independent regulatory agencies and to disseminate best
practices.
71

The precise number of responding agencies is unknown because 4 respondents did not provide an agency
affiliation; as such, the actual number may be as small as 24 or as large as 28.

72

BERG ET AL., supra note 14, at 259–63 (enumerating all agencies subject to the Act).

17

March 10, 2014

(1) Open/Closed Agency Meetings: Of the board or commission members who responded
to the second Bell survey, 53.7% considered open agency meetings to comprise an “important”
or “very important” source of information about the views and positions of fellow board or
commission members.73 A slightly higher percentage, 60.7% of respondents, asserted that closed
meetings were “important” or “very important” for achieving that purpose.74 By contrast, a
significantly higher percentage of board or commission members found conversations amongst
groups of members short of a full quorum (81.9%) and conversations with personal (69.6%) or
agency staff (78.2%) to comprise “important” or “very important” sources of such information.75
Similarly, for purposes of achieving compromises amongst board or commission members,
respondents considered meetings of members short of a quorum (69.1% described this as
“important” or “very important”), inter-member email exchanges (56.2%), exchange of written
materials (46.2%), and meetings amongst staff member (75.4%) more significant than open
(36.8%) or closed (41.8%) meetings.76
When asked whether discussions at open meetings changed their views on issues before
the agency, 62.5% of members responded that such discussions “seldom” or “never” did so, as
contrasted with 26.8% of respondents who indicated that such discussions “frequently” or
“occasion[ally]” did so.77 The percentage of members influenced was similar for closed
meetings (46.5% responded “seldom” or “never”; 25% responded “frequently” or “on a number
of occasions”).78 Similarly, when asked whether statements they made at open meetings
influenced other board or commission members, 64.3% responded “seldom” or “never,” as
contrasted with 23.2% who responded “frequently” or “occasion[ally].”79 Again, the numbers
were substantially similar with respect to closed meetings (49.2% responded “seldom” or
“never”; 21.5% responded “frequently” or “on a number of occasions”).80
These results support several conclusions. First, roughly two-thirds of members do not
consider open meetings conducted pursuant to the Sunshine Act to be a particularly effective
forum for persuading other members of a position or for being influenced by other members.
73
74
75

Appendix A (Member Survey) at 42 (Question 5).
Id.
Id.

76

Appendix A (Member Survey) at 44 (Question 8).

77

Appendix A (Member Survey) at 41 (Questions 1 and 3).

78

Id. The lower overall percentages are a function of the much larger number of respondents who answered “not
applicable” for this question.

79

Appendix A (Member Survey) at 41 (Questions 2 and 4).

80

Id. The lower overall percentages are a function of the much larger number of respondents who answered “not
applicable” for this question.

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March 10, 2014
The results also do not suggest that closed meetings are much more effective than open meetings
for this purpose: only about 25% of respondents indicated that they either persuaded others or
were influenced by colleagues at open or closed meetings. Second, though more than half of
respondents considered both open and closed meetings to be fairly important for purposes of
learning other members’ positions, much larger percentages considered interactions such as
meetings with staff and informal discussions to comprise a significant source of information. In
summary, the results suggest that open meetings are not an insignificant source of information
and deliberation, but they are relatively less important than other exchanges that fall beyond the
purview of the Act. Further, closed meetings appear to be only marginally more effective than
open meetings, and interchanges outside of formal meetings seem to be more valuable than both.
(2) Non-Meeting Exchanges: As explored in the previous subsection, agency members
considered non-meeting discussions such as meetings with staff members and informal
interactions amongst groups of members short of a full quorum to be more significant than either
open or closed meetings for purposes of exchanging views and engaging in compromises.
Several other findings of both surveys bolster this conclusion. Most significantly, board and
commission members indicate that they frequently use notational voting to dispose of agency
business. Roughly three quarters (75.4%) of board and commissioner member respondents
stated that their agency uses notational voting, and 60.5% noted that their agency “almost
always” or “frequently” uses that procedure even when disagreement amongst members exists
(though 64.3% asserted that their agency “infrequently” or “almost never” uses notational voting
to address “novel matters of policy or novel issues of fact or law”).81
Interestingly, the general counsel survey revealed a fairly stark dichotomy in agencies’
use of notational voting: many disposed of all or nearly all agency business by notational voting,
and many disposed of no or almost no agency business via the procedure, but relatively few
agencies disposed of a moderate amount of agency business by that mechanism. Specifically, of
32 general counsels who estimated the percentage of agency business addressed by notational
voting, 15 provided a figure of 10% or less (46.8%),82 12 provided a figure of 90% or more
(37.5%),83 and 5 provided a figure between 10.1% and 89.9% (15.6%).84
In short, the results suggest that the vast majority of agencies use notational voting,
though many use it very sparingly. Significantly, roughly one-third of agencies handle virtually
(or literally) all agency business via notational voting. Thus, regardless of the normative
81

Appendix A (Member Survey) at 46 (Questions 11–13).

82

Appendix B (General Counsel Survey) at 57-58 (Question 4). Ten respondents (31.2%) indicated that their
agencies never use notational voting. Id.

83

Id. Five respondents (15.6%) indicated that their agencies dispose of 100% of agency business via notational
voting. Id.

84

Id.

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March 10, 2014
arguments that can be posited for retaining or eliminating notational voting, it is beyond question
that eliminating or curtailing the use of notation procedure would be massively disruptive for
those agencies that have come to heavily rely upon it.
(3) Agency Accommodation to the Sunshine Act: Though it is somewhat perilous to draw
sweeping conclusions from specific data points, the overall gestalt of the survey responses
suggests that agencies more or less have adjusted to the requirements created by the Act: they
have devised efficient mechanisms for conducting agency business while ensuring full
compliance with the letter (though arguably not the spirit) of the law. Though no single response
leads ineluctably to this conclusion, the following data points strongly support it:







85

Notwithstanding the Sunshine Act, roughly two-thirds of board and commission
member respondents indicated that they had “adequate opportunities” “to learn
about the views and positions of other Commissioners/Board Members” (72.7%),
“to convince other Commissioners/Board Members of your position on issues”
(71.4%), and “to work out compromises between their positions or narrow the
issues in dispute” (71.9%) under the current law.85
Over 80% of board and commission member respondents stated that notational
voting is used “just about the right amount” of time.86
When asked if they found it difficult to determine whether holding closed briefing
sessions would run afoul of the Act, 57.2% of board and commissioner
respondents indicated that doing so would be “very easy” or “easy,” as contrasted
with 18.4% who felt it would be “difficult or “very difficult.”87
The board and commission member surveys produced little evidence that
commission or board members avoided discussion of certain issues in open
meetings or were otherwise chilled in their interactions as a result of the Act.
When asked how often they discuss their positions or views in open meetings,
80.3% of board and commission member respondents indicated that they did so
“almost always,” “frequently, or “on a number of occasions.”88 Only 19.7%
averred that they “seldom or “never” did so.89 Further, of the individuals who
provided the response “seldom” or “never,” very few indicated that they were

Appendix A (Member Survey) at 43 (Questions 6–7, 9).

86

Id. at 47 (Question 14). Approximately fourteen percent of respondents felt notational voting was used “too
frequently,” and roughly five percent thought it was used “not frequently enough.” Id.

87

Id. at 49 (Question 20).

88

Id. at 49 (Question 21).

89

Id.

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March 10, 2014
particularly concerned about “making an erroneous or inaccurate statement,”
causing confusion, or misleading regulated entities or the public.90
In short, though the data indicate that agencies deem it entirely appropriate to rely upon
procedures such as notational voting that do not implicate the Act’s open meeting requirements,
it appears that agencies have effectively learned to live with the Act and have more or less
adjusted to the balance that it strikes between open meeting requirements and preserving the
ability to conduct certain business privately. Though the data obviously cannot support a
normative conclusion concerning whether this is the “right” balance, it does imply that the
current system neither cripples agencies in conducting their day-to-day business nor creates such
massive loopholes that the Act is effectively a dead letter. At the same time, both board and
commission members and general counsels raise a number of complaints concerning the existing
state of affairs, which the next subsection will explore.
(4) Agency Complaints concerning the Sunshine Act: Notwithstanding the overarching
conclusion that agencies have essentially learned to live with the Sunshine Act, the surveys also
reveal a number of criticisms of the Act. Indeed, when asked directly whether they would
support amendments to the Sunshine Act, roughly two-thirds of board and commission member
respondents (62.3%) replied “yes.”91 Some of the proposed reforms emerging from both surveys
include the following:





90

Several respondents noted the problems that the Sunshine Act creates for three
member boards and commissions, given that any assemblage of two members
constitutes a quorum under the Act.92 None of the respondents offered a
particularly detailed solution to this problem, other than indicating that members
of agencies should be able to hold one-on-one meetings without fear of violating
the Act.
Multiple member respondents indicated that agencies should be able to hold
brainstorming sessions or general discussions without triggering the Act.93
Numerous respondents proposed that agencies that conduct adjudications should
be permitted to discuss pending cases in closed session (much as judges sitting on

Id.

91

Id. at 11 (Question 25). The substantial number of affirmative responses to this question arguably calls the
conclusion of the previous subsection into doubt. Nevertheless, the question merely asks whether board or
commission members would amend the Act, not how substantially they would alter it or whether or not they believe
it is feasible to do so. Further, as the subsequent discussion will reveal, the responses did not overwhelmingly
identify any specific problem as requiring reform, and many of the proposed amendments (e.g., clarifying the
definition of “meeting” under the Act) do not admit of straightforward solutions.

92

Appendix A (Member Survey) at 51–55 (Question 25); Appendix B (General Counsel Survey) at 64, 66
(Questions 15, 17).

93

Appendix A (Member Survey) at 51-55 (Question 25).

21

March 10, 2014





a federal appellate court would privately discuss the resolution of a pending
case).94
Several general counsel respondents called for greater clarity in the definition of
“meeting” under the Act, though none indicated precisely how the definition
should be amended or supplemented.95
Two general counsel respondents suggested that the requirements for announcing
open meetings were overly burdensome.96

Other than the last suggestion, which addresses a rather minor ministerial detail
associated with the Act, the other proposed amendments all effectively concern the scope of
“meetings” covered by the Sunshine Act. Some deal with defining the ambit separating
meetings subject to the Act from those that are exempt, whereas others address re-defining
activities currently subject to the Act (e.g., a substantive discussion amongst two members of a
three-member board) as exempt. The problem of separating exempt “preliminary discussions”
from covered “disposition of agency business” is an exceedingly nettlesome issue that has vexed
courts and agencies for decades, and these complaints are therefore not terribly surprising.
Satisfactorily resolving that issue is, of course, an ambitious task, a fact evidenced by the dearth
of proposed solutions in the various responses.
B.

CIRA Discussions and Survey

After the completion of the Bell surveys, CIRA held a series of meetings (led by ACUS
Chairman Paul Verkuil) to discuss the results of the survey and collect agency input on potential
recommendations for improving the Act and/or enhancing agencies’ compliance therewith. The
first such meeting took place on September 7, 2012; roughly 20 representatives from various
independent regulatory agencies attended the meeting. At that meeting, I summarized the results
of the Bell survey. The discussion focused upon two primary topics: (1) whether to recommend
legislative amendments to the Sunshine Act (including resurrecting the 1995 Administrative
Conference recommendation concerning a pilot program permitting expanded use of private
meetings) and (2) potential agency “best practices” under the existing law.
As a general matter, participants expressed far more interest in recommendations relating
to “best practices” than in urging Congress to amend the Act. With respect to the 1995
Administrative Conference recommendation, several participants indicated that expanding the
sets of circumstances under which agencies can hold private meetings would not be especially
valuable, given that agencies consider alternative mechanisms of exchanging views and
94

Appendix A (Member Survey) at 51-55 (Question 25); Appendix B (General Counsel Survey) at 64, 66
(Questions 15, 17).

95

Appendix B (General Counsel Survey) at 64, 66 (Questions 15, 17).

96

Appendix B (General Counsel Survey) at 64 (Question 15).

22

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information more significant than either open or closed meetings, a conclusion bolstered by the
responses to Bell’s board and commission member survey.97 Similarly, participants were not
terribly sanguine concerning the prospect of passing legislation designed to reform the Act, given
the lack of evidence of fundamental flaws in the current regime. As such, the participants
encouraged the Conference to focus upon “best practices” under the existing Act.
On June 14, 2013, CIRA held a second meeting to discuss potential “best practices”
under the Act; roughly 20 representatives from numerous agencies subject to the Act attended.
Administrative Conference intern Arjun Ravi reviewed the Sunshine Act regulations of roughly
20 agencies to identify provisions related to notational voting, staff meetings, and serial
meetings, and I presented his findings to the CIRA attendees. In addition, I proposed two
potential sets of “best practices” drawn from the Bell surveys: (1) common guidance concerning
when agencies should use notational voting, staff meetings, sub-quorum discussions, and other
mechanisms for disposing of agency business that do not trigger the Act and (2) examination of
issues raised by novel technologies and proposals for how agencies can successfully navigate the
“new media” landscape.
As a general matter, participants suggested that the latter set of best practices sounded
more promising than the former. Agency practices related to member interactions outside of
formal meetings vary significantly, and attempting to weld the diverse policies into a common,
“one-size-fits-all” approach would likely be an unproductive exercise, resulting either in an
exceedingly vague pronouncement that blesses almost all existing practices or a somewhat more
strict formulation that forecloses agency innovations. By contrast, fewer agencies have grappled
with the problems posed by electronic communications, and many felt that a series of
recommendations concerning “best practices” for exploiting such technologies while ensuring
scrupulous compliance with the Act would be quite beneficial.
In connection with the second meeting, I prepared a brief series of survey questions
concerning “best practices” under the Act and potential statutory reforms, which I circulated to
CIRA participants in advance of the meeting. I have highlighted a few of the responses below
(focusing on common themes rather than details concerning how individual agencies handle
notational voting, staff meetings, etc.):


97

Several agencies provide a publicly available document (generally posted on the
agency website) describing its procedures for conducting open or closed meetings
and offering an overview of how the agency conducts business more generally.

See supra section II.A.1.

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March 10, 2014








Many agencies announce the result of notational voting on the website and send
electronic notification to interested parties (e.g., via an email distribution list to
which members of the public can subscribe).
Several respondents indicated that a nearly simultaneous exchange amongst a
quorum of members via email or any other electronic communication mechanism
could qualify as a “meeting” under the Act. As such, many agencies caution
members against such exchanges to avoid inadvertently violating the Act.
Many agencies maintain webpages related to open meetings, including calendars
that announce the dates of such meetings and online libraries containing
documents to be considered during meetings.
Several agencies webcast open meetings (none of the responses discussed the
problem of section 508 compliance).

The results suggest that a number of agencies have pioneered innovative policies for
exploiting technological advances, which promise both to improve the transparency of agency
decisionmaking processes and enhance the efficiency of agency operations. The next section
highlights the most promising advances and offers a series of recommendations that encourage
other agencies to adopt these innovations as appropriate.
III.

RECOMMENDED “BEST PRACTICES” UNDER THE SUNSHINE ACT

From its inception, the Government in the Sunshine Act has sought to balance two
competing policies. The Act arose as a result of concerns regarding excessive secrecy in the
operation of government agencies: by subjecting multi-member agencies, which operate via
group deliberation, to an open meeting requirement, Congress attempted to ensure that the media
and the public more broadly could monitor the work of such agencies.98 Nevertheless, from the
outset, Congress realized that imposing excessively onerous openness requirements would
hamstring the work of agencies by formalizing all interactions of agency members and
potentially undermining the collegiality that is the hallmark of multi-member boards and
commissions.99 The Act itself attempts to achieve a balance by providing a series of exceptions
to the open meeting requirements,100 and agencies and courts have interpreted the Act not to
apply to certain interactions such as meetings amongst members’ staff and notational voting.101

98

S. REP. NO. 94-354, at 1–2 (1975).

99

Kathy Bradley, Do You Feel the Sunshine? Government in the Sunshine Act: Its Objectives, Goals, and Effect on
the FCC and You, 49 FED. COMM. L.J. 473, 482–83 (1997).

100

5 U.S.C. § 552b(c).

101

See supra section I.C.

24

March 10, 2014
The research conducted in connection with the project did not necessarily demonstrate
that the existing regime strikes the ideal balance between openness and efficiency. Indeed, the
Bell surveys indicated that roughly two-thirds of agency members support amendments to the
Act and revealed a number of proposed revisions thereto.102 Further, advocates of governmental
transparency also have criticized the existing system, contending that many agencies fail to
comply with the spirit of the law.103 In his testimony before the special committee the
Administrative Conference convened to study the Act in 1995, William B. Ketter, then President
of the American Society of Newspaper Editors, observed that “[i]n our view it is not the Act
itself that has stifled the deliberative process, rather the blame lies with agencies themselves for
their willful refusal to embrace the clear intent of the Sunshine Act.”104
Nevertheless, the survey responses indicate that, though the existing regime perhaps does
not strike the optimal balance between the competing considerations, it achieves some level of
transparency without hobbling agency operations. Further, given the compelling considerations
on both sides, any fundamental revision to the Act would likely prove enormously controversial
and would perhaps garner insufficient support to achieve passage in Congress. Indeed, the CIRA
representatives expressed some reluctance to propose legislative amendments to the Act,
including a pilot program along the lines of the 1995 recommendation of the Administrative
Conference special committee allowing for private meetings, and instead encouraged the
Conference to analyze potential best practices under the Act.
In that light, the following recommendations seek to highlight best practices identified by
the Bell and CIRA surveys. None would require an amendment to the Sunshine Act or a
reinterpretation of existing case law. The recommendations are not intended as a one-size-fits all
approach, and several of the recommendations may not apply to specific multi-member agencies.
Rather, they are designed to identify several innovations and urge other agencies subject to the
Sunshine Act to consider adopting or adapting such practices as appropriate. The
recommendations are attuned to the need to balance enhanced transparency against ensuring the
efficiency and cost-effectiveness of agency operations, and they are designed to impose minimal
costs on agencies (or even achieve cost savings) while greatly improving the transparency of
agency operations.
102

See supra section II.A.

103

Administrative Conference of the United States, Report and Recommendation by the Special Committee to
Review the Government in the Sunshine Act, 49 ADMIN. L. REV. 421, 424 (1997) (“It should be noted that the
[special ACUS committee to review the Sunshine Act] also heard from representatives of several major press-related
organizations who, while not disputing the view that agency members are generally reluctant to have substantive
discussions in public meetings, expressed the view that such public officials should change their behavior and
admonished them to do so.”).
104

Administrative Conference of the United States, Special Committee to Review the Government in the Sunshine
Act, Transcript of Public Hearing, Statement of William B. Ketter, President of the American Society of Newspaper
Editors 24–25 (Sept. 12, 1995).

25

March 10, 2014

Recommendation 1: Each multi-member agency should develop a succinct, public
document that discusses the mechanisms for attending and participating in open meetings and
discloses the agency’s procedures for closing meetings and the Sunshine Act exceptions upon
which the agency typically relies. It should also describe the types of business the agency
conducts outside of open meetings (including via notational voting) and how the results are
revealed to the public. Each such agency should post a copy of this document on its website and
in other places in which it can be accessed by interested members of the public.
To stakeholders and members of the general public who may be interested in the work of
a multi-member agency, the intricacies of the Sunshine Act and the process by which each
agency goes about complying with the Act can seem inordinately complex. In particular, based
upon its rather colloquial and ambitious title, the “Government in the Sunshine Act,” members of
the public may incorrectly assume that the Act mandates that all federal agencies (including
those headed by a single chairperson) must conduct all agency business in public. Many may be
unaware of the various exceptions that permit agencies to close meetings, and few individuals
other than agency general counsels are likely familiar with the subtle nuances that separate
preliminary discussions from “meetings” subject to the Act. As such, by making an upfront
investment of time in developing a document describing the agency’s Sunshine Act procedures
in a manner that is comprehensible to members of the public, a multi-member agency not only
improves the transparency of its operations but also likely preempts complaints from
stakeholders who may not otherwise fully understand the legal landscape or the particular
policies implemented by the agency.
The Board of Governors of the Federal Reserve System (FRS) has developed a very
succinct document that provides such general information in plain language.105 Amongst other
things, FRS’s Sunshine Act memorandum provides the following information:





A description of when open meetings are generally held, how to receive notice of
upcoming open meetings and to attend said meetings, and how to obtain
information connected with such meetings (e.g., meeting agendas, documents
considered at meetings, recordings of meetings).
A description of agency procedures for announcing closed meetings and an
overview of the types of matters frequently examined in such meetings.
A brief notification that the agency utilizes notational voting and that the full
board sometimes delegates authority to individual board members or agency staff.

105

Board of Governors of the Federal Reserve System, Government in the Sunshine Act Memorandum: A Guide to
Meetings of the Board of Governors of the Federal Reserve System, available at
http://www.federalreserve.gov/aboutthefed/boardmeetings/sunshine.htm; see also BERG ET AL., supra note 14, at
321–28 (Appendix L).

26

March 10, 2014



An enumeration of Sunshine Act exemptions.
A description of other matters relevant to the agency’s Sunshine Act compliance
efforts.

The Nuclear Regulatory Commission (NRC) also offers a brief overview of the Sunshine
Act as it relates to commission meetings in a lengthier document describing opportunities for
citizen engagement with the NRC’s work.106 Specifically, the NRC notifies the public that they
are typically entitled to attend commission meetings unless if a Sunshine Act exemption applies,
and it enumerates the exemptions that it frequently invokes.107 It describes the avenues for
learning about upcoming NRC meetings (including Federal Register notices, website
notification, and email distribution lists).108 It also notes that documents associated with
meetings are typically made available on the agency website, and it indicates that most meetings
involve live webcasts.109 Though the description of NRC meeting policies is considerably less
detailed than that offered by the FRS (occupying less than a page in a much longer document), it
provides a succinct summary of the agency’s policies that should prove beneficial to members of
the public interested in viewing open NRC meetings.
Of course, the contents of such a document may vary significantly from agency to
agency. For instance, the instances in which an agency closes a meeting may vary significantly
from case to case, and the agency may be unable to announce a specific set of subject matters
typically discussed in closed meetings. Some agencies may not use notational voting
procedures, in which case a description is unnecessary. Other agencies may make quite heavy
use of notational voting, and they should provide a more elaborate description of the procedure.
For instance, such an agency should provide examples of matters addressed by notational voting,
offer an overview of how the notation procedure operates, and notify the public of the process by
which the agency discloses the results of matters subject to notational voting. With respect to the
exceptions, an agency may wish to list only those that routinely arise in its work (e.g., the
National Council on the Arts is unlikely to invoke the exception for matters accusing an
individual of a crime110), and it may want to elaborate upon those exceptions that it frequently
invokes (e.g., providing examples of the sorts of matters that typically qualify for each
exception).

106

Nuclear Regulatory Commission, Citizen’s Guide to U.S. Nuclear Regulatory Commission Information,
available at http://www.nrc.gov/reading-rm/doc-collections/nuregs/brochures/br0010/br0010v4.pdf (last visited
Aug. 19, 2013).
107
108
109
110

Id. at 28.
Id.
Id.
5 U.S.C. § 552b(c)(5).

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March 10, 2014
At a minimum, such a document should include the following elements: (a) a description
of procedures for public participation in open meetings, including an overview of the process by
which the agency provides notice of meetings, the frequency with which meetings are convened
(if held periodically), the typical location of meetings, any remote participation options, and any
opportunities for providing input for consideration by agency members; (b) an overview of the
types of documents that an agency typically releases in connection with open meetings (e.g.,
agendas, agency reports), when they are made available, and where to obtain them; (c) a
description of the procedures the agency follows for closing meetings and an enumeration of the
Sunshine Act exceptions the agency frequently invokes; and (d) an overview of the types of
business the agency frequently conducts outside of open meetings (including via notational
voting) and how the agency reveals the results reached via such decisionmaking mechanisms.
The document also should describe any other features unique to the agency’s decisionmaking
processes that would be of interest to stakeholders and the general public. The document should
eschew “legalese” or other technical terms that may be incomprehensible to the broader public
(e.g., describing the process of taking a vote via memoranda circulated to board and commission
members is preferable to using the term of art “notational voting”). The agency should post this
document prominently on the segment of its website dedicated to agency meetings.
Drafting and posting such a document is likely to involve a very minimal expenditure of
effort, yet the potential benefits for both the public and the agency are substantial. The agency’s
general counsel, of course, should closely review the final product to ensure that the proposed
meeting procedures fully accord with the Sunshine Act and that the agency does not overcommit
to supplemental procedures that may prove difficult to satisfy (e.g., promising to post all relevant
documents one week in advance of an open meeting). For the public, such a document would
significantly clarify procedures that may otherwise seem arcane and would provide a clear
roadmap for following the work of the agency. For the agency, such a document would
hopefully preempt a number of inquiries that agency staff would otherwise have to field, and,
ideally, it would disabuse members of the public of unrealistic notions concerning the level of
transparency the Sunshine Act creates. If clearly informed of the types of business handled in
open meetings and the types handled in closed meetings or in internal deliberations, as well as
the legal and policy justifications for the latter, interested citizens are perhaps less likely to
complain about agency procedures or assail the work of the agency as non-transparent.
Recommendation 2: For open meetings, multi-member agencies should post a meeting
agenda and, to the extent permitted under relevant agency policies, all documents to be
considered during the course of the meeting on the agency website as far in advance of the
meeting as possible. In the event that the agency does not post meeting documents in advance, it
should do so not later than the start of the meeting or in a timely manner after the meeting has
occurred.

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March 10, 2014
Though the Sunshine Act provides that “every portion of every meeting of an agency
shall be open to public observation,”111 it does not, as a general matter, address the availability of
documents associated with agency meetings (other than a few minor provisions that deal with
matters such as releasing recordings or minutes from closed meetings).112 In this sense, it differs
from another major transparency law, the Federal Advisory Committee Act (FACA), which
provides that, subject to the Freedom of Information Act exceptions, “the records, transcripts,
minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were
made available to or prepared for or by each advisory committee shall be available for public
inspection and copying.”113 In 2011, the Administrative Conference issued a recommendation
that built upon this disclosure requirement in FACA, urging agencies with advisory committees
“to post documents relevant to upcoming meetings (e.g., draft reports, recommendations, or
meeting agendas) [on the agency website] as early as possible in advance of the meeting to
which they relate and other materials that document the events of past meetings (e.g., minutes or
transcripts) as quickly after the meeting as possible.”114
In the research supporting the FACA recommendation (for which I also served as an inhouse researcher), I interviewed numerous agency representatives, and they supported the
posting of committee documents on the website as a simple, cost-effective means of ensuring
that stakeholders can follow the work of their advisory committees.115 Similarly, in connection
with the instant project, I surveyed CIRA members to obtain input on “best practices” under the
Sunshine Act, and many pointed to the electronic posting of agency documents relevant to open
meetings as a worthwhile innovation. Documents that agencies post in connection with open
meetings include the following: meeting notices (including Federal Register notices announcing
upcoming meetings), press releases, meeting agendas, staff memoranda to be considered at
meetings, meeting transcripts and/or minutes, public comments received by the agency, and
background documents needed to comprehend the meeting discussions (e.g., briefs and copies of
relevant past decisions for an adjudication undertaken by a multi-member agency).
The act of actually converting relevant documents to electronic files (if they are not
already digitized) and posting them on an agency website should, as a general matter, impose a
de minimis cost on agencies. It also significantly expands the information available to the public
and greatly enhances stakeholders’ ability to participate meaningfully in the work of an agency.
Nevertheless, the act of selecting the documents that the agency will post and ensuring that they
111

Id. § 552b(b).

112

Id. § 552b(f).

113

5 U.S.C. App. § 10(b).

114

Administrative Conference of the United States, Recommendation 2011-7, The Federal Advisory Committee
Act—Issues and Proposed Reforms, ¶ 9, 77 Fed. Reg. 2257, 2264 (Jan. 17, 2012).
115

Bull, supra note 8, at 56.

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March 10, 2014
are ready to be posted prior to the meetings to which they pertain is a far more challenging
endeavor. As such, agencies should develop internal policies examining the types of documents
they will post in connection with open meetings and the timeline by which they will release those
documents.116 Meeting notices and meeting agendas should be posted prior to open meetings.
Meeting transcripts obviously must be posted after open meetings, preferably shortly after the
meeting has occurred. Ideally, staff memoranda, public comments, and other background
documents that may be beneficial for stakeholders and interested members of the public who
wish to study the matters to be addressed at the meeting should be released in advance of the
meeting, preferably providing interested parties sufficient time to review the materials and
analyze the issues to be addressed at the meeting. This may not always comply with the
agency’s policy concerning the release of “draft” documents or otherwise prove practicable,
however, and the agency should at least post relevant documents on its website at the start of the
meeting at which they are considered, if possible, or shortly after the meeting has occurred, at the
latest.
The sine qua non of a successful document disclosure program is managing the
expectations of stakeholders and the general public. If executed successfully, the agency can
preempt public inquiries and complaints and thereby preserve time and resources that would
otherwise be spent responding to questions. If executed poorly, the agency can create or
reinforce unrealistic expectations on the part of the public and actually increase the likelihood of
such inquiries and complaints. As such, the document describing the agency’s meeting policies
discussed in recommendation 1 should contain as much detail as possible concerning the types of
documents the agency generally releases and the schedule on which such documents are
provided without committing the agency to an unrealistic timeline. For instance, if the agency
typically provides materials to be addressed at upcoming meetings one week in advance but is
uncertain of its ability to adhere unfailingly to that deadline, the meeting policy may state “the
agency will strive to provide documents for consideration at upcoming meetings in a timely
manner; to the extent a document is not available before a meeting, the agency will release it at
the start of the meeting or as soon thereafter as possible.”
Recommendation 3: Multi-member agencies should create listservs that allow interested
stakeholders and members of the public to obtain meeting notices and other announcements
relevant to upcoming open meetings.
At least one week prior to any open meeting, the Sunshine Act requires each multimember agency to “make public announcement . . . of the time, place, and subject matter of the
116

To the extent that the agency feels comfortable doing so, in accordance with recommendation 1, the agency may
describe these document-posting policies in the public description of agency meeting procedures posted to the
agency’s website. Nevertheless, if agencies cannot pre-commit to posting certain types of documents or to releasing
them within a certain timeframe, it may be preferable to provide a general statement such as “the agency will strive
to post all relevant documents in a timely manner.”

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March 10, 2014
meeting, whether it is to be open or closed to the public, and the name and phone number of the
official designated by the agency to respond to requests for information about the meeting.”117
“[I]mmediately following each public announcement,” such information “shall also be submitted
for publication in the Federal Register.”118 Given the fact that the Act was enacted in 1976, the
statute obviously does not address electronic notification of upcoming meetings.
This report will not address the question of whether the Congress should revise the
Sunshine Act to replace the Federal Register requirement with a more modern method of premeeting notice. On the one hand, subscriptions to the print Federal Register have eroded
considerably over the past several decades,119 and several agency general counsels who
responded to the Bell survey indicated that the existing notice requirements are overly
burdensome.120 On the other hand, the so-called “digital divide” remains a salient issue,121 and
authorizing agencies to rely exclusively upon electronic notice would necessarily exclude certain
members of the public who lack familiarity with or meaningful access to computer technology
from receiving notifications. Though internet access will likely become sufficiently pervasive to
obviate any need for a written notice requirement at some point in the near future, this report will
not opine upon whether that stage has been reached.
The report does, however, advocate a multi-faceted approach to providing notices of open
meetings. In recommendation 2, the report proposed that agencies should post meeting
information on the agency website. In addition to the Federal Register and website notices,
agencies should also create email listservs through which the agency can circulate meeting
notices, agendas, documents slated for discussion, and other relevant materials to interested
stakeholders.122 Creating and maintaining such a listserv creates minimal administrative costs
for the agency: interested members of the public can simply subscribe by sending an email to a

117

5 U.S.C. § 552b(e)(1).

118

Id. § 552b(e)(3).

119

U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-04-830, GOVERNMENT PRINTING OFFICE: ACTIONS TO STRENGTHEN
AND SUSTAIN GPO’S TRANSFORMATION 12 (2004).
120

Appendix B (General Counsel Survey) at 64 (Question 15). In addition to the investiture of time required to
prepare and submit a notice, the cost of publishing in the Federal Register is not insubstantial, with publication costs
running $159 per column of text (and typical meeting notices requiring at least one or two columns). Gov’t Printing
Office, Circulate Letter No. 851 (June 8, 2012), available at http://www.gpo.gov/pdfs/customers/cir851.pdf.
121

Amir Hatem Ali, The Power of Social Media in Developing Nations: New Tools for Closing the Global Digital
Divide & Beyond, 24 HARV. HUM. RTS. J. 185, 189–90 (2011).
122

See, e.g., Federal Election Commission, Commission Meetings,
http://www.fec.gov/agenda/agendas.shtml#archive (permitting the user to subscribe to a listserv providing notices of
document postings); Nuclear Regulatory Commission, Subscribe to Email Updates, http://www.nrc.gov/publicinvolve/listserver.html (same); Federal Energy Regulatory Commission, eSubscription, http://www.ferc.gov/docsfiling/esubscription.asp (same).

31

March 10, 2014
designated address or submitting a subscription request via the agency website,123 and they can
remove their name from the listserv via reply email. At the same time, such listservs greatly
enhance public access to the work of the agency by eliminating the need for interested parties to
periodically review the agency’s website or the Federal Register to obtain notice of upcoming
meetings.
Recommendation 4: Multi-member agencies should consider providing webcasts of open
meetings. If practicable and cost-effective, the agency should consider providing real-time
streaming video of ongoing meetings, but, if this does not prove viable, the agency should
consider providing an archived webcast after the meeting has occurred.
Prior to the rise of the internet and inexpensive webcasting programs, open meetings
subject to the Sunshine Act, though technically available to all members of the public interested
in participating, were effectively unavailable to all but a handful of individuals in close
geographic proximity to the agency. In the last several years, webcasting has become
sufficiently cost-effective that agencies can, in theory, reach a nationwide audience by simply
posting a webcast on the agency website.124 Indeed, platforms such as YouTube and UStream
offer free services permitting users to post videos to the internet, and webcasting hardware has
become exceedingly inexpensive (with a simple web camera costing less than $100).
Unfortunately, in practice, webcasting open meetings of multi-member agencies is not so
simple as placing a webcam in the meeting room and uploading the video to YouTube. In
particular, agencies must consider the access provisions for persons with disabilities imposed by
section 508 of the Rehabilitation Act.125 Though agencies are not formally required to webcast
open meetings, any video that they make available must comply fully with section 508. Section
508 requires that any public application “using electronic or information technology” must
ensure that “individuals with disabilities . . . have access to and use of information and data that
is comparable to” that available to persons without disabilities, unless doing so would impose an
“undue burden” on the agency.126 The Architectural and Transportation Barriers Compliance
123

For instance, the Administrative Conference website allows members of the public to subscribe to listservs
covering the work of the Conference more generally, all projects of any of the six Conference committees (each of
which handles multiple projects), or any given project of any one of the committees. See, e.g., Administrative
Conference of the United States, Government in the Sunshine Act, http://www.acus.gov/researchprojects/government-sunshine-act (including a section titled “Get Project Notifications” that allows a user to submit
his or her name and email address and thereby subscribe to the listserv for the instant project).
124

See Reeve T. Bull, Ongoing Web Forum Meetings of Federal Advisory Committees: A Proposed Use of “New
Media” under the Federal Advisory Committee Act 6 (Mar. 17, 2011), available at
http://www.acus.gov/sites/default/files/documents/FACA-Web-Forum-Memo-3-17-2011-_2_.pdf (stating, in
reference to webcasting meetings of federal advisory committees, that “a meeting by web forum holds the promise
of substantially enhancing the possibility for public attendance at advisory committee meetings”).
125

29 U.S.C. § 794d.

126

Id. § 794d(a)(1).

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March 10, 2014
Board, which is charged with promulgating regulations under section 508,127 has issued a rule
providing that “[a]ll training and informational video and multimedia productions which support
the agency’s mission, regardless of format, that contain speech or other audio information
necessary for the comprehension of the content, shall be open or closed captioned.”128 Thus,
when an agency elects to make a webcast available, it must provide captioning to ensure access
by persons with hearing impairments.
The requirement to provide textual captions can create significant additional costs for
agencies, for hiring a reporter to provide simultaneous captioning can cost on the order of several
thousand dollars. A somewhat more economical (though still potentially cost-prohibitive)
alternative would be submitting the webcast to a transcription company that can then prepare a
set of captions after the fact (usually within a matter of several days); such services typically cost
on the order of several hundred dollars, with the price depending upon the length of the meeting.
Software developers have also produced various voice-recognition programs that provide realtime captioning of live events, though the accuracy of such captions can vary considerably from
case to case and greatly depends upon the clarity and crispness of the associated audio file.129
Federal agencies also have developed programs for broadcasting meetings. Most
notably, the Department of Homeland Security (DHS) has created a program titled the Homeland
Security Information Network (HSIN), which essentially is a webcasting program that allows
users to post videos for private or public viewing.130 DHS describes the program as follows:
[HSIN] provides various capabilities including file sharing, audio and video
broadcasting, screen sharing, and instant messaging for virtual briefings,
discussions, training, or reports[.] HSIN Connect can handle persistent
meetings—such as daily threat briefings, daily incident management coordination
meetings, weekly reports or monthly training sessions—or meetings scheduled
on-the-go when participants are unable to meet in person.131
Per my discussions with Sarah Schwettman, a HSIN Program Analyst in DHS’s Office of
Applied Technology, HSIN also provides a live captioning service to ensure section 508

127

Id. § 794d(a)(2).

128

36 F.F.R. § 1194.24(c).

129

See Streaming Learning Center, http://www.streaminglearningcenter.com/articles/closed-captioning-forstreaming-media.html (last visited Aug. 7, 2013) (describing various low-cost options for captioning streaming
video).
130

See generally U.S. Department of Homeland Security, Office of Operations Coordination and Planning, HSIN
Connect User Policy (Jan. 11, 2013).
131

Id. at 1–2.

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March 10, 2014
compliance. Essentially, the program includes voice-recognition software that will convert audio
input into textual output in near real-time.
The HSIN system, however, is not universally available for use by federal agencies that
wish to webcast their meetings. Technically, the stated mission of the HSIN system is “to
improve the management, discovery, fusing, sharing, delivery of, and collaboration around
terrorism-related information to enhance national security and help keep our people safe.”132
Though the HSIN Program Office can authorize federal agency users whose mission is not
necessarily related to homeland security, one must specifically apply for an exception, and
mission-related uses will receive priority.133 The HSIN system also is not designed to
accommodate a particularly large number of participants or to permit simultaneous use by a
number of different agencies. For instance, a user must obtain special permission to host a
session with more than 400 participants.134 Thus, though agencies might consider using HSIN as
a free service to webcast open meetings under the Sunshine Act, the system is not designed to
serve as the primary webcasting forum for all governmental users. Furthermore, agencies cannot
anticipate whether 400 or more members of the public will log on to view any given meeting
(though past attendance statistics likely provide a fairly reliable predictive metric for future
attendance), and HSIN therefore may not be a viable option for agencies that host meetings
likely to garner significant public interest.
In short, current technology does not provide an ideal solution permitting agencies to
provide high-quality, section 508-compliant webcasts at a reasonable cost. As webcasting
programs evolve and cloud-computing becomes more pervasive, the costs are likely to diminish.
Nevertheless, at the present, with the exception of agencies that can consistently utilize the HSIN
system for all meetings, the cost of webcasting is likely to be on the order of several hundreds of
dollars per meeting, a non-trivial expense in a constrained budget environment. As such, any
“one-size-fits-all” solution is unlikely.
Instead, each agency should assess whether the benefits of webcasting committee
meetings, which include enhanced transparency and fostering greater public participation, justify
the costs, which include both the monetary expenses entailed in purchasing webcasting
equipment, web storage, and captioning services and the staff resources required to arrange and
conduct the webcast. Some agencies may conclude that the costs outweigh the benefits and
forego the use of webcasting (at least until technological advancement decreases the net costs);
other agencies may determine to provide exceedingly inexpensive webcasting that relies upon
HSIN or a free service such as YouTube coupled with low-cost voice recognition software for
132
133
134

Id. at 2.
Id.
Id. at 3.

34

March 10, 2014
captioning; and still other agencies may elect to purchase a higher end webcasting system and
pay for professional captioning services to ensure a high-quality product. In short, each agency
should consider the options outlined above and select a solution that takes into account its
resource constraints, the interest of the agency’s stakeholder community in viewing meeting
webcasts, and the ability to dedicate staff resources to providing such webcasts.
Recommendation 5: Consistent with legal obligations and agency policies concerning the
protection of confidential information, multi-member agencies should provide a complete
description of all substantive agency business conducted outside of open meetings, including
matters disposed of in closed meetings, via notational voting, or through a series of one-on-one
meetings of board or commission members.
The Sunshine Act specifically addresses the problem of announcing closed meetings and
retaining a record of business transacted therein. It provides that “[i]n the case of each meeting,
the agency shall make public announcement, at least one week before the meeting, of the time,
place, and subject matter of the meeting, whether it is to be open or closed to the public, and the
name and phone number of the official designated by the agency to respond to requests for
information about the meeting.”135 The Act further provides that “[t]he agency shall maintain a
complete transcript or electronic recording adequate to record fully the proceedings of each
[closed] meeting” or, in the case of a meeting closed under exceptions 8, 9(a), or 10, “either such
a transcript or recording, or a set of minutes.”136 After a closed meeting has occurred, the agency
must make the record memorializing the meeting “promptly available to the public,” though it
can withhold or redact any information relating to matters that fall under one of the various
Sunshine Act exceptions.137
With respect to business transacted via notational voting or serial meetings of subquorum groups of members, no similar requirement exists. The agency is required neither to
announce the outcome of such deliberations nor even to disclose the fact that they have occurred.
When the agency disposes of routine matters via such procedures, the absence of a disclosure
requirement is entirely appropriate: the public has no legitimate interest in learning of the process
by which an agency decided upon a date and time for an open meeting or addressed any other
quotidian, administrative matters inherent to the day-to-day functioning of the agency. If, on the
other hand, the agency transacts substantive business via such mechanisms (and the matters
discussed are not confidential), a norm of public disclosure is far more appropriate.

135

5 U.S.C. § 552b(e)(1) (emphasis added).

136

Id. § 552b(f)(1).

137

Id. § 552b(f)(2).

35

March 10, 2014
Notwithstanding the lack of any formal disclosure requirement relating to agency
business addressed outside of meetings, many agencies have voluntarily implemented procedures
for describing matters disposed of via non-public decisionmaking processes. In response to a
question concerning disclosure of matters addressed via notational voting in the CIRA member
survey, several agencies indicated that they both publicly announced the result of such votes and
provided an opportunity for board and commission members to explain their decisions. Such
disclosures are generally less common for matters discussed via a series of meetings between
groups of board or commission members smaller than a quorum, since those discussions are
much less likely to result in the official disposition of agency business. Nevertheless, when the
agency makes a decision on a substantive matter via such processes, it should publicly announce
its determination and, where practicable and appropriate, provide an explanation of the key
considerations in reaching that conclusion.
In addition, with respect to closed meetings, an agency may wish to provide a more
comprehensive description than that required by the Act. Though the Act requires the agency to
“promptly” release the transcript, recording, or minutes associated with a closed meeting after it
has occurred, the agency can withhold or redact any information that falls under one or more of
the various exceptions.138 For many matters, the agency may withhold certain information
indefinitely: trade secrets, criminal accusations, personal information, and law enforcement
investigations are likely to remain sensitive even after a closed meeting has occurred.139 Other
matters, however, may involve information of evanescent sensitivity, and the agency may later
wish to disclose such information. For instance, exception 9 covers matters likely to lead to
financial speculation or to endanger the stability of a financial institution and matters likely to
frustrate implementation of a proposed agency action.140 Once an agency has already
implemented a proposed program, the necessity of protecting this information expires, and the
agency therefore should consider releasing meeting materials as appropriate.
In short, each agency should adopt a norm of disclosure, voluntarily releasing
information and providing descriptions of substantive decisions that are neither confidential nor
too trivial to be of particular interest to stakeholders or the general public. Though adhering to
these norms is not costless, since the agency must devote resources to identify information to be
disclosed and produce summaries of matters addressed via non-public procedures, the
countervailing transparency gains are substantial. Further, as with recommendation 1, the
agency is likely to reap significant benefits from investing the resources required to adhere to
this recommendation. Stakeholders and members of the public are presumably less likely to
assail agency decisionmaking procedures or resort to alternative mechanisms for procuring
138

Id.

139

Id. § 552b(c).

140

Id. § 552b(c)(9).

36

March 10, 2014
information, such as filing a Freedom of Information Act request, if they can easily follow the
work of agencies and obtain timely access to relevant non-confidential information chronicling
the work of the agency.
Recommendation 6: Board and commission members of multi-member agencies should
avoid email or other electronic exchanges in which the entire group can engage in an iterative
exchange of messages. Email exchanges involving a substantive discussion over a relatively
short period of time should be limited to groups of members smaller than a quorum. If the
members actually intend to hold a “virtual meeting” via a series of electronic exchanges, they
should consider using the web forum developed by the Administrative Conference for hosting
such meetings.
Perhaps no issue has proven so nettlesome for multi-member agencies in the “digital age”
as the question of whether email exchanges amongst a quorum of board or commission members
fall under the Sunshine Act. On the one hand, ignoring the velocity of exchange, a series of
emails seems almost perfectly analogous to notational voting: board and commission members
engage in a series of written exchanges and potentially resolve an issue via a written vote.141 On
the other hand, given the fact that email discussions can effectively include a large group of
persons in a real-time exchange of views, email communication amongst members is perhaps
more analogous to a teleconference, which certainly would trigger the Act.142 Though many
would contend that a nearly simultaneous email exchange would be subject to the Act,143 the
precise degree of synchronicity required is completely unclear. At the risk of speculation, an
online “chat” amongst board or commission members (using an instant messaging program) or
an email exchange in which replies are spaced apart by only a few minutes would likely
comprise a “virtual meeting” subject to the Act. By contrast, an email chain in which replies are
spaced apart by several hours much more closely resembles notational voting and is likely
exempt.144 The “cutoff” between these two somewhat extreme examples is completely unclear;
for instance, a relatively active email exchange amongst members in which a new reply occurs
approximately every 15 minutes may or may not trigger the Act.
In the absence of any clear delineation between subject and exempt email exchanges,
agencies likely would be wise to pursue a prophylactic approach by which they curtail or
141

Commc’ns Sys., Inc. v. Fed. Comm’cns Comm’n, 595 F.2d 797, 801 (D.C. Cir. 1978).

142

S. REP. NO. 94-354, at 18–19 (1975) (“Conference telephone calls . . . are equally subject to the bill if they
discuss agency business and otherwise meet the requirements of [the Act].”).
143

BERG ET AL., supra note 14, at 26 (“As technology enhances the possibilities for agency members in remote
locations to engage in simultaneous or near-simultaneous exchanges of views through electronic means, it seems
clear that the definition of ‘meeting’ cannot reasonably be limited to face-to-face encounters in the same room.”).
144

Id. (“In our view, the mere exchange of e-mails, even among a quorum, would not, in itself, constitute a meeting.
Despite the ease and swiftness of transmission, an e-mail is a written communication, and in the agency context
more akin to an inter- or intra-office memorandum that to a face-to-face exchange of views.”).

37

March 10, 2014
eliminate the use of chain email exchanges by board or commission members. Of course,
eliminating the use of member-to-member email entirely would be quite counterproductive given
the ubiquity of electronic communications. Such a draconian solution would also be
unnecessary, for agencies can pursue a variety of mechanisms to avoid inadvertently creating a
“virtual meeting.” One potential solution would be for board and commission members to strive
to ensure that email chains never include a quorum of members. Of course, this solution is less
than ideal insofar as some exchanges would likely be relevant to all agency members.145
Nevertheless, it is an attractive option for individual members who want to communicate with
one or a small number (short of a full quorum) of colleagues. An alternative solution would be
for any member who intends to communicate with other members to use the “bcc” feature
(which prevents other members from immediately responding by using the “reply all” function)
and for the other members to refrain from immediately sending a separate email on the same
subject to the entire group.146 This would not trigger the Act insofar as it does not involve a realtime electronic exchange; it is almost perfectly analogous to a single member’s sending a written
memorandum to other members. By using these two approaches, board and commission
members should be able to make relatively effective use of email while avoiding any
transgressions under the Act.
In some instances, however, a multi-member agency may actually wish to hold an open
meeting via a series of short-term electronic exchanges. Indeed, conducting such a meeting is an
exceedingly cost-effective and transparent method of disposing of agency business in full
compliance with the Sunshine Act. In my research for the Administrative Conference’s FACA
project, I examined the possibility of advisory committees’ holding such “virtual meetings” via
web forum. Like the Sunshine Act, FACA contains a number of transparency requirements with
which all meetings, electronic or otherwise, must comply. For instance, all meetings must be
announced in advance in the Federal Register147 and must permit attendance by interested
members of the public.148 Though neither FACA nor its implementing regulations specifically
addresses the problem of meetings held via web forum,149 a meeting conducted on a discussion

145

The agency could partially circumvent the problem by creating a series of smaller sub-quorum groups. For
instance, at a hypothetical agency with nine members and a five member quorum requirement, the membership
could be divided into three member sub-groups, and each group could be headed by one member. Labeling the subgroup heads A, B, and C for purposes of the hypothetical, A, B, and C could exchange information via an initial
email exchange (which would not involve a quorum), and each of them could then communicate to the two other
members in his or her group (which also would not involve a quorum). This is, of course, far less efficient than
simply allowing all members to communicate via “reply all” emails.
146

Of course, the “bcc” feature prevents the recipient from determining the individuals included on the email, and
this may not prove practicable in situations in which the sender wishes to convey that information.
147

41 C.F.R. § 102-3.150.

148

5 U.S.C. App. § 10(a)(1); 41 C.F.R. § 102-3.140.

149

The implementing regulations do state that “[a]ny advisory committee meeting conducted in whole or part by a
teleconference, videoconference, the Internet, or other electronic medium meets the requirements of this subpart,”

38

March 10, 2014
board would meet all of the FACA requirements.150 For instance, the committee could announce
the opening of the web forum in advance in the Federal Register, and members of the public
would be permitted to view postings of committee members and submit comments for the
committee’s consideration.151 In this light, in the FACA recommendation, the Conference urged
the General Services Administration to update the FACA implementing regulations to announce
explicitly that such web forum meetings are permissible and encouraged agencies that host
advisory committees to consider the use of such meetings.152
By the same token, multi-member agencies may be interested in hosting “virtual
meetings” by web forum, and such agencies can relatively easily satisfy the requirements of the
Sunshine Act. Specifically, the agency could issue a Federal Register notice seven days in
advance of the web discussion announcing the time during which it will occur and the website at
which it will proceed.153 At the meeting, agency members would be permitted to post publicly
available comments to the discussion forum; the agency could also invite specific stakeholders to
submit comments or even open the forum to comments from members of the public, though there
is no legal requirement that it do so (given the lack of any formal public comment provision in
the Sunshine Act). The forum would proceed on a publicly available website, thereby satisfying
the public access provisions of the Act.154 The benefits of such a “virtual meeting” are
multitudinous. First, it is exceedingly cost-effective insofar as arranging a web forum is
generally much less costly than convening a quorum of board or commission members at a
specific geographic location. Second, it provides greater flexibility for members of agencies; the
discussion could presumably proceed over the course of several days or even weeks. Finally,
using such a web forum greatly increases the transparency of the process. Individuals from
disparate parts of the nation who may not otherwise be able to attend an agency meeting would
be permitted to review the proceedings remotely (and can do so at their own leisure rather than
viewing the event at a specific time). In addition, such a web forum could serve as an alternative
to notational voting in those instances when the agency is comfortable analyzing an issue in a
public forum and feels that the problem is sufficiently important to generate public interest. In

41 C.F.R. § 102-3.140(e), but they do not characterize the sorts of virtual exchanges that are encompassed within
“Internet” and “other electronic” meetings.
150

See generally Reeve T. Bull, Ongoing Web Forum Meetings of Federal Advisory Committees: A Proposed Use
of “New Media” under the Federal Advisory Committee Act (Mar. 17, 2011), available at
http://www.acus.gov/sites/default/files/documents/FACA-Web-Forum-Memo-3-17-2011-_2_.pdf (explaining how a
web forum meeting can meet each of the various FACA requirements).
151

Id. at 5–8.

152

Administrative Conference of the United States, Recommendation 2011-7, The Federal Advisory Committee
Act—Issues and Proposed Reforms, ¶ 6, 77 Fed. Reg. 2257, 2263 (Jan. 17, 2012).
153

5 U.S.C. § 552b(e).

154

Id. § 552b(b).

39

March 10, 2014
short, web forum meetings promise to significantly enhance the efficiency of agency operations
while greatly improving the transparency of the process.155
In connection with the FACA project, the Administrative Conference customized an open
source internet discussion board to enable the user to conduct “virtual advisory committee
meetings” in which both committee members and members of the general public can offer
comments. The Conference successfully held such a “virtual meeting” in connection with its
Science in the Administrative Process project.156 A number of open source programs offering
various features are available on the Internet, and agencies can easily tailor these programs to
allow board and commission members (and, if desired, members of the public) to post comments
in connection with such a web forum meeting.
CONCLUSION
In its nearly 40 years of existence, the Government in the Sunshine Act has attempted to
bring increased openness and transparency to the operations of multi-member agencies. In that
time, it has come under attack both from agencies subject to its strictures, some of which contend
that it drives interactions underground and otherwise reduces the collegiality of multi-member
boards and commissions, and from governmental transparency advocates, who assert that the Act
contains major loopholes and that agencies regularly flout the spirit of the law by exploiting
these gaps. Prior Administrative Conference projects and research conducted in connection with
this project suggest that both sets of concerns are legitimate, but the findings also suggest that the
existing regime maintains a reasonable, if not ideal, balance between efficiency and transparency
and that a major legislative overhaul of the law is unlikely. As such, this report offers a series of
“best practices” related to improving agency administration of the Act to respond to “new
media” advances. These proposals would generally improve the efficiency of agency operations
while simultaneously producing transparency gains. Though one can debate the optimal
intensity of “sunshine” needed to illuminate the work of agencies without desiccating agency
operations in withering heat, the recommendations ensure that the method of lighting is up-todate such that both agencies and members of the public benefit from the win-win scenarios made
possible by new technologies.
155

Of course, the agency would not necessarily wish to rely exclusively or even primarily upon web forum
meetings. For certain matters, holding an in-person discussion may be critical to promote a deliberative process, and
web fora should generally not displace traditional meetings. Nevertheless, adding web forum discussions to the
arsenal of potential meeting mechanisms should improve agency operations, particularly in instances in which a
matter that otherwise would have been addressed via private email exchange or notational voting can be analyzed in
a publicly available forum.
156

See Administrative Conference of the United States, Science in the Administrative Process, Science Project
Virtual Meeting Transcript, http://www.acus.gov/sites/default/files/documents/Virtual-Forum-COR-Science-ProjectDiscussion-COMBINED-PDF.pdf (reprinting all posts received in connection with the “virtual meeting” for the
Science in the Administrative Process project).

40

March 10, 2014
Appendix A (Member Survey)

Board/Commission Member Survey Questions & Responses
Background Information Given: In this survey, an open meeting is a meeting that is open to
the public (or the open portion of a partially open/partially closed meeting). A closed meeting is
a meeting of a quorum of the commission or board that is closed pursuant to a Sunshine Act
exemption (or the closed portion of a partially open/partially closed meeting).
Questions 1 & 3: How often has a discussion among Commission/Board members at an open
(closed) Sunshine Act meeting changed your views on a particular issue?
Frequently

On a number
of occasions
25% (14)
19.6% (11)

Seldom

Never

Not
Applicable
1.8% (1)
41.1% (23)
21.4% (12)
10.7% (6)
Q1. Open
5.4% (3)
41.1% (23)
5.4% (3)
28.6% (16)
Q3. Closed
answered question
56
skipped question
2
 Board Members more often than not reported that their views are Never or Seldom
changed when a meeting is open. When the Not Applicable individuals are removed, the
percentage of Never respondents is 24% for Open and 7.5% for Closed.
Questions 2 & 4: How often do you think you have changed the mind of another
Commission/Board member by any comments you made at an open (closed) Sunshine Act
meeting?
Frequently

On a number
of occasions
23.2% (13)
17.9% (10)

Seldom

Never

Not
Applicable
0.0% (0)
42.9% (24)
21.4% (12)
12.5% (7)
Q2. Open
3.6% (2)
41.1% (23)
7.1% (4)
30.4% (17)
Q4. Closed
answered question
56
skipped question
2
 Board Members more often than not believe that they Never or Seldom change another’s
views when a meeting is Open. When the Not Applicable individuals are removed, the
percentage of Never respondents is 24.5% for Open and 10.3% for Closed.

41

March 10, 2014
Question 5: How significant is each of the following sources in providing information about the
views and positions of other members of your Commission/Board on issues before the
Commission/Board? (You may identify sources not mentioned by using the "other sources" slot
below.)
Answer Options

Very
Important

Important

Not
Important

Not
Applicable

Response
Count

Discussions at “open”
Sunshine Act meetings

20.4% (11)

33.3% (18)

35.2% (19)

11.1% (6)

54

Discussions at “closed”
Sunshine Act meetings

26.8% (15)

33.9% (19)

12.5% (7)

26.8% (15)

56

26.8% (15)

33.9% (19)

12.5% (7)

26.8% (15)

56

45.5% (25)

36.4% (20)

3.6% (2)

14.5% (8)

55

10.7% (6)

55.4% (31)

21.4% (12)

12.5% (7)

56

18.25 (10)

47.3% (26)

20.4% (11)

14.5% (8)

55

62.5% (35)

7.1% (4)

10.7% (6)

20.4% (11)

56

60.0% (33)

18.2% (10)

20.4% (11)

1.8% (1)

55

16.1% (9)

25.0% (14)

45.5% (25)

14.5% (8)

56

3.6% (2)

29.1% (16)

54.5% (30)

12.5% (7)

55

Conversations with the
Chairperson of your
Commission/Board
Conversations with one or
more Commissioners/Board
members where the total
number of participants does
not constitute a quorum
Emails from other
Commission/Board members
Memos or other written
materials (excluding emails)
from other
Commission/Board members
Conversations with your
personal staff
Conversations with agency
staff
Reviewing notations made as
a part of notational/seriatim
votes
Reviewing speeches or other
communications of
Commission/Board members
to third parties

13

Other Sources
answered question
skipped question



56
2

Open meetings seem to be thought of as less important than closed meetings, but it is
difficult to draw any strong conclusions when comparing open and closed meetings.
However, it is clear that Board Members think their conversations with personal staff and
agency staff are very important and that Board Members also value conversations with
other Board Members when there is not a quorum.
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March 10, 2014
Question 6: Do you believe you have adequate opportunities to learn about the views and
positions of other Commissioners/Board Members?
Response
Yes
No



Response Percent
72.7%
27.3%
answered question
skipped question

Response Count
40
15
55
3

Generally, Board Members believe that they have adequate opportunities to learn about
the views of other Board Members.

Question 7: Do you believe you have adequate opportunities to convince other
Commissioners/board members of your position on issues before the Commission/Board?
Response
Yes
No



Response Percent
71.4%
28.6%
answered question
skipped question

Response Count
40
16
56
2

Generally, Board Members believe that they have adequate opportunities to convince
other Board Members of their positions.

Question 9: Do you believe that Commissioners/Board members have adequate opportunities to
work out compromises between their positions or narrow the issues in dispute?

Response
Yes
No



Response Percent
71.9%
28.1%
answered question
skipped question

Response Count
41
16
57
1

Generally, Board Members believe that they have adequate opportunities to work out
compromises on positions or narrow issues in dispute.

43

March 10, 2014
Question 8: How important is each of the following in terms of Commissioners'/Board
Members' opportunity to work out compromises between their positions or narrow issues in
dispute?

Answer Options
Open Sunshine Act meetings
Closed Sunshine Act meetings
Series of meetings between
groups of Commissioners/Board
Members where the total number
of participants does not
constitute a quorum
Email exchanges
Memos or other written materials
(excluding emails) from other
Commission/Board members
Meetings between staff members
of various Commissioners/Board
Members

Very
Important

Important

Not
Important

Not
Applicable

Response
Count

10.5% (6)
20.0% (11)

26.3% (15)
21.8% (12)

50.9% (29)
29.1% (16)

12.3% (7)
29.1% (16)

57
55

49.1% (27)
5.3% (3)

20.0% (11)
50.9% (29)

12.7% (7)
31.6% (18)

18.2% (10)
12.3% (7)

55
57

15.8% (9)

40.4% (23)

31.6% (18)

12.3% (7)

57

52.6% (30)

22.8% (13)

15.8% (9)

8.8% (5)

57

answered question
skipped question



57
1

Though it is somewhat difficult to compare the importance of open and closed meetings
due to the Not Applicable responses, it is clear that Board Members believe meetings
with other Board Members where there is no quorum and meetings with other Board
Members’ staffs are very valuable opportunities to work out compromises.

Question 8: Excluding Not Applicable response

Answer Options

Very
Important

Important

Not
Important

Response
Count

Open Sunshine Act meetings

12% (6)

30% (15)

58% (29)

50

Closed Sunshine Act meetings

28.2% (11)

30.8% (12)

41% (16)

39



After removing the Not Applicable responses, a larger percentage of Board Members who
have closed meetings believe they are Important or Very Important as compared to open
meetings.

44

March 10, 2014
Question 10: What, if any, influence do the views and positions of the following individuals
have on your decision on issues before your Commission/Board?
Answer Options
Other
Commissioners/Boa
rd Members
Chairperson of your
Commission/Board
Members of your
personal staff
Members of agency
staff

Very
influentia
l

Substantiall
y
Influential

Little
Influenc
e

No
influenc
e at all

Not
Applicabl
e

Respons
e Count

21.1%
(12)

64.9% (37)

8.8% (5)

5.3% (3)

0

57

47.4% (27)

7.0% (4)

5.3% (3)

35.1% 20

1.8% (1)

8.8% (5)

54.5% (31)

7.0% (4)

3.5% (2)

17.5%
(10)
35.1%
(20)
35.1%
(20)

22.8%
(13)
19.3%
(11)
0

answered questions
skipped questions

57
57
57
57
1

Question 10: Excluding Not Applicable responses

Answer Options
Other
Commissioners/Board
Members
Chairperson of your
Commission/Board
Members of your personal
staff
Members of agency staff


Very
influential

Substantially
Little
Influential
Influence

No
influence
at all

Total
Responses

21.2% (12)

64.9% (37)

8.8% (5)

5.3% (3)

57

22.7% (10)

61.4% (27)

9.1% (4)

6.8% (3)

44

43.5% (20)

43.5% (20)

2.2% (1)

10.9% (5)

46

35.1% (20)

54.4% (31)

7.0% (4)

3.5% (2)

57

Even after removing the Not Applicable responses, more Board Members seem to think
that personal and agency staff are Very Influential as compared to other Board Members
and the Chairperson.

45

March 10, 2014
Background Information Given: Notational voting, also known as "sequential" or "seriatim"
voting, involves circulation of an action item and supporting materials to each
Commissioner/Board Member for him or her to vote on the matter.
Question 11: Does your Commission/Board engage in notational voting?
Response
Percent
Yes
75.4%
No
24.6%
answered question
skipped question
 The majority of Boards use notational voting.
Answer Options

Response
Count
43
14
57
1

Question 12: How frequently is a decision made by notational vote without a follow-up meeting
when there is disagreement on the Commission/Board (as evidenced by conflicting notational
votes, i.e. one or more yeas and one or more nays)?
Answer Options
Almost always
Frequently
Infrequently
Almost never

Response
Percent
32.6%
27.9%
16.3%
23.3%
answered question
skipped question

Response
Count
14
12
7
10
43
15

 More responding Boards seem to at least Frequently make decisions by notational vote when
there is disagreement without a follow-up meeting than Infrequently or Almost Never.

Question 13: How frequently is the decision made by notational vote without a follow up
meeting on novel matters of policy or novel issues of fact or law?
Response
Response
Percent
Count
Almost always
21.4%
9
Frequently
14.3%
6
Infrequently
35.7%
15
Almost never
28.6%
12
answered question
42
skipped question
16
 As compared to Question 12, it seems that the responding Boards are less likely to make
a decision with notational voting without a meeting, when the issues are matters of policy
or novel issues.
Answer Options

46

March 10, 2014
Question 14: Do you believe notational voting is used too frequently or not frequently enough
by your Commission/Board?
Answer Options
Too frequently
Just about the right amount
Not frequently enough



Response
Percent
14.3%
81.0%
4.8%
answered question
skipped question

Response
Count
6
34
2
42
16

A large majority of Board Members believe they use notational voting the right amount.

Background Information Given: Background: Some have advocated that Commissions/Boards
have sessions that are not focused on a particular issue before the board, but that are general
brainstorming sessions, either (1) to come up with lines of inquiry or options for further
consideration, or (2) to give the Commission/Board an opportunity to assess trends or discuss
how the agency is performing in general. Please answer the questions below regarding
brainstorming sessions.
Question 15: Does your Commission/Board have brainstorming sessions such as those described
above?
Response
Response
Percent
Count
Yes
35.1%
20
No
64.9%
37
answered question
57
skipped question
1
 More Board Members do not have “brainstorming sessions” than do.
Answer Options

Question 16: Are the brainstorming sessions [at your agency] held as open Sunshine Act
meetings?
Response
Response
Percent
Count
Almost always unless an exemption applies
20.0%
4
Sometimes
20.0%
4
Never
60.0%
12
answered question
20
skipped question
38
 These “brainstorming sessions” are usually not open Sunshine Act meetings.
Answer Options

47

March 10, 2014
Question 17: Regardless of whether your Commission/Board has brainstorming sessions, how
important do you feel it is to have such sessions for the following purposes:
Answer Options
Development of lines of inquiry or options for
further consideration
Assessment of trends
Discussions on the agency's performance


Very
important

Somewhat
important

Not
important

67.3% (37)

21.8% (12)

10.9% (6)

60.0% (33)
30.9% (17)
9.1% (5)
62.5% (35)
33.9% (19)
3.6% (2)
answered question
56
skipped question
2
Even Board Members who do not have “brainstorming sessions” seem to believe they are
important for several different reasons.

Background Information Given: Background: Some have thought that being able to have
closed staff briefings on general matters (such as basic concepts, legal doctrines, or trends
relevant to the agency's responsibilities) is significant. Answer the questions below regarding
staff briefings.
Question 18: Does your Commission/Board have either open or closed meetings to receive
briefings?
Response
Response
Percent
Count
Yes
77.2%
44
No
22.8%
13
answered question
57
skipped question
1
 The majority of responding Boards have meetings to receive briefings.
Answer Options

Question 19: If yes, are the meetings to receive briefings open to the public?
Response
Response
Percent
Count
All are
8.9%
4
Most are
31.1%
14
The number of closed and open meetings are about equal
15.6%
7
Most are not
22.2%
10
None are
22.2%
10
answered question
45
skipped question
13
 Boards vary in whether these meetings are mostly open or mostly closed; though 10
Boards never hold open briefing meetings.
Answer Options

48

March 10, 2014

Question 20: Some Commissions/Boards have closed briefings that they do not consider subject
to the Sunshine Act. (Such sessions might be referred to as “gatherings.”) If your
Commission/Board has such closed briefings how easy or difficult is it for you to determine
which comments or questions are consistent with the principle that Commissioners/Board
Members cannot "deliberate" in closed briefing sessions?
Answer Options
Very easy
Easy
Difficult
Very difficult
Not applicable, I am unaware of such a
principle.


Response
Percent
14.3%
42.9%
8.2%
10.2%

Response
Count
7
21
4
5

24.5%

12

answered question
49
skipped question
9
The majority of respondents (57.14%) who were aware of such principles believed it was
at least Easy to determine which comments or questions where consistent with the
principle that Board Members cannot “deliberate” at “gatherings.”

Question 21: How often do you discuss or explain your position or views at “open” Sunshine
meetings?
Response
Response
Percent
Count
Almost always
37.5%
21
Frequently
21.4%
12
On a number of occasions
21.4%
12
Seldom
3.6%
2
Never
16.1%
9
answered question
56
skipped question
2
 A majority of Board Members Frequently or Almost Always explained their positions or
views at “open” Sunshine meetings.
Answer Options

49

March 10, 2014
Question 22: If your answer to the question above is "seldom" or "never," please answer the
following question. How important a factor, if at all, is each of the following in your decision not
to speak more often? (You may mention other reasons for speaking infrequently by using the
"other reasons" slot below.)

Answer Options
I do not feel the need to speak
more often.
I feel any such statement will have
no effect on other members.
I am concerned about making an
erroneous or inaccurate statement.
I feel that any such statement, even
if factually accurate and correct,
may cause confusion or mislead
either regulated entities or the
public.
I am following Commission/Board
custom of not speaking extensively
at open meetings.
Other Reasons

Very
Slightly
Important
Important
Important

Not a
factor
at all

Response
Count

2

0

2

7

11

0

0

2

9

11

0

0

5

6

11

1

2

0

8

11

0

2

2

7

11
8

answered question
skipped question


11
47

Only 11 Board Members did not frequently share opinions at “open” meetings, and none
of the above rationales for their failure to do so appears to be predominant.

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Question 23: How often do the partisan affiliations of Commissioners/Board Members
significantly inhibit the ability of the Commission/Board to work together?
Answer Options
Almost always
Frequently
On a number of occasions
Seldom
Never
No political balance requirement
answered question
skipped question


Response
Percent
5.5% (3)
9.1% (5)
18.2% (10)
27.3% (15)
29.1% (16)
10.9% (6)
55
3

Board Members do not generally believe that political affiliations inhibit the ability of the
Board to work together.

Question 24: Given the way your Commission/Board operates, do you think the quality of
decisions would be better, worse, or about the same if they were made by an individual agency
head rather than a Commission/Board?
Answer Options
Better
About the same
Worse



Response
Percent
12.5%
16.1%
71.4%
answered question
skipped question

Response
Count
7
9
40
56
2

The majority of Board Members believe that the agency would be worse if it was run by
an individual head rather than a Board. Of the 13 Chairs that answered this question, only
one believed the agency would be better if run by an individual, and only four believed it
would be about the same.

Question 25: Do you think the Sunshine Act should be modified?
Answer Options
Yes
No



Response
Percent
62.3%
37.7%
answered question
skipped question

Response
Count
33
20
53
5

The majority of Board Members believed the Sunshine Act should be modified, though
20 Board Members did not believe that is should be modified.
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Question 25: Do you think the Sunshine Act should be modified?157


32 respondents that believed the Sunshine Act should be modified provided comments:
o Almost all of these comments are legislative suggestions.
●I believe the limitation on three or more Board members talking together (especially about
rulemaking issues) is a real liability. Meetings on cases should be closed but not for rule making
discussions. The procedural requirements for closing a meeting should also be simplified -- e.g.,
publishing in advance in the Federal Register or closing the meeting formally and then recording
the meeting seem to serve no purpose. (Legislative)
●If the Board cannot meet except in public, why can the President of the United States have a
private dinner with the CEOs of a dozen major corporations (Apple, Google, etc), along with his
senior policy advisors (Jarrett, et al), when all of the corporations have business before the US
government, and all of the attendees are major contributors to political arm of the
administration? And yet this meeting can be closed to the public, and only an "official" White
House photo released. This very meeting happened in early 2011, and I'm sure many times
before and after. Any yet, a board with a budget of $400 million has to take care to make sure
that there are no deliberations or decisions except in public. If the Sunshine Act is meaningful
and effective, it has to apply to the big dogs as well as the little dogs. Given the brazen disregard
of it by the White House, it apparently does not apply to the sort of meeting I have described. To
that extent, the Act should be modified or scrapped. (Legislative)
●I am not in a position to advocate for or against modifications to the Sunshine Act. However, to
the extent the Sunshine Act could be modified in ways that are consistent with its purpose of
increasing the transparency of government action, while addressing some of the inefficiencies
that result from [its operation], I think that such modifications would be worthy of consideration.
(Legislative)
●It [the Sunshine Act] needs to allow for more opportunity to discuss matters and reach
decisions in closed session.
●It is positively insane to bar spontaneous conversations about agency issues -- budget,
personnel, strategy, priorities, and pending cases. These discussions provide real time
engagement and help formulate common understandings about what the agency should do. Note
that these agencies function as adjudicatory bodies, as well. Executive sessions cannot be held
without elaborate notice and clearance processes. No appellate tribunal in our courts works this
way. At a minimum, the Act should be modified to allow quorum-level or quorum-plus
discussions about pending agency enforcement matters. (Legislative)
●[The Act is] too proscriptive regarding number of members who can engage in discussions.

157

The following entries include excerpts from various Board Member responses. Some of the responses have been
edited to remove grammatical and spelling errors.

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DRAFT: For Committee Review

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●Quasi-judicial agency proceedings should be excluded from the Sunshine Act, so that agency
members can deliberate together prior to making decisions, just as members of a multi-member
court would do. (Legislative)
●There should be [clarification and modification] to the statute's language to permit more "nondeliberative" meeting[s] with Commission members that are not subject to full "sunshine." There
should be adequate notice to all Commission members, so as to avoid a "gang of three”
excluding the minority, and there can be a provision for a summary disclosure of the topic that
was discussed, without disclosing the points of view or substance of the discussions. Obviously,
all voting would still be in public. Look at the model that the Judicial branch of our government
uses. All Courts of Appeal and the Supreme Court meet AND deliberate in 100% private
meetings. They then vote in public. I doubt that you could find anyone who would argue that
those judicial closed door meetings should be subject to the Sunshine Act with either "open" or
"closed" meeting provisions. The five Commission members should be allowed to meet as a
group, with or without either personal counsel or agency counsel, and fully discuss views,
positions, policies and agency matters. (Legislative)
●The Sunshine Act was not crafted with bipartisan, independent agencies in mind. There needs
to be a modification of the law to reflect the realities of such agencies. (Legislative)
●In general, I support the goals of the Sunshine Act and believe that it is important for public
officials, including members of Commissions and Boards, to conduct their business in a manner
that is transparent to the public. However, it can be difficult to foster collegiality when
opportunities for the full body to gather and interact socially are restricted so severely. To avoid
the appearance of impropriety, our full Commission rarely interacts as a body in social contexts.
It would be helpful to have an allowance for occasional social interaction of the entire body, and
on a bipartisan body, the requirement that the entire membership of the Commission be invited
and participate in such activity should reduce the likelihood of improper deliberation by a
quorum that excludes members of a minority party. (Legislative)
●[The Act should] allow for greater interaction as a body to engage in informal discussions,
cognizant of prohibition on voting agreements on a particular issue, [and this would] satisfy the
intent of Sunshine Act. Here, voting should, of course, be restricted to an open meeting, after the
public has an opportunity to engage on an issue. A strict interpretation of the Sunshine Act often
results in restricting interaction among Commissioners with regard to paramount public policy
issues. (Legislative)
●The Sunshine Act, while well intended, should be amended because decisions are often
(functionally) made outside of its auspices, even as the law hampers the regular course of
business by prohibiting any meetings of more than two Commissioners. Commissioners are
forced to rely upon discussions among their staffs. This can be time consuming and leads to
miscommunication. A way for more than two Commissioners to exchange views without
violating the Sunshine Act would improve the functioning of the Commission. (Legislative)

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●Matters concerning non-investigative issues should not be open to the public. It inhibits
discussion and results in "gaming" of the issues. (Legislative)
●I don't really know whether the Sunshine Act itself should be modified, or whether the
Commission's interpretation of it is overly restrictive. It seems to me that the Commission, as a
quasi-judicial body, should be able to have closed conferences to discuss cases, as appellate
courts do. In terms of our deliberations being open to the public, I don't understand why
Commissioners are able to communicate with each other as a group without restriction by email
(which, as I understand it, are not subject to FOIA), but closed meetings to discuss cases are
frowned upon. Our counsels can talk together but Commissioners can't. It doesn't make much
sense to me.
●The Act should permit group brainstorming sessions that do not lead to an ultimate conclusion,
but that merely explore the key issues, as long as the ultimate decision is reached in a public
session. (Legislative)
●Flexibility needs to be given for non-public discussions of general policy issues unrelated to a
specific case or cases. For meetings called for the purpose of discussing particular case(s), I
cannot conceive of any reason for not holding the meeting in the open. (Legislative)
●Although it is by no means certain, our process would likely be more efficient if we could meet
in larger groups (in the manner of multi-member appellate courts) to discuss pending case
adjudications. (Legislative)
●Addition of an explicit provision for closed briefing meetings with published agendas.
Publication of such notices on an agency website should be permitted rather than a requirement
to publish them in the Federal Register. (Legislative)
●In the case of three member boards, it would be more effective to make policy decisions if
board members could talk to each other directly. (Legislative)
●Since the vast majority of the Board's deliberations involve individual cases, quasi-judicial
entities should be exempt from the Sunshine Act. (Legislative)
●I suggest more authority for closed meetings.
●Our chief problems with the Sunshine Act have been in hiring our chief executive and in
strategic planning. We have managed to work around these, but given that they are not really
core concerns of the Act, there should be exemptions built in. First, although job interviews are
going to be closed no matter what, there needs to be a more explicit acknowledgement that
Search Committees are not bound by the Act, so we can rapidly schedule meetings at which a
candid assessment of the candidates will occur. Second, the Act needs to be updated to allow us
to discuss long-term, strategic issues and retrospective assessments outside of the reach of the
Sunshine Act. The Act is designed so that immediate issues affecting the public or the public's
money (regulations, budgeting, and so forth) are [handled] in a transparent way. That's fine, as
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these delimited issues don't lend themselves to creative solutions, while public interest is high
and public input often useful. But an agency needs to have to opportunity to self-examine in a
more creative and macroscopic way, and encourage policymakers to think "outside the box" on
occasion. At some point, public input should be called for; but not at every point -- an initial
planning and deliberation session that generates a nonfinal document, itself subject to notice,
disclosure and public comment, should be free of Sunshine Act requirements. (Legislative)
●Commissioners must have additional flexibility to share views and information in private to
prepare for final votes at public meetings. (Legislative)
●More flexibility to have quorum level gatherings, without the fear of having an open meeting.
(Legislative)
●Meetings between more than two Commissioners should be permitted. (Legislative)
●More personnel matters should be clearly excluded from Sunshine, e.g. performance reviews.
●Based on my experience, I think it would be better to carve out some background discussions
that could [be] held without an open meeting. (Legislative)
●Need to address need for smaller agencies to negotiate positions. (Legislative)
●I think Commissions should be able to meet to discuss and deliberate issues in closed sessions
so long as they then cast their votes and discuss their reasons for doing so in public sessions.
That's actually what most agencies do now, but through closed staff deliberations rather than
closed Commission deliberations. In other words, very little actual deliberation occurs in open
Commission sessions. Instead, we see arguments in public about positions already developed,
but almost no deliberation, negotiation, or compromise. (Legislative)

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Agency Affiliation
Agency
Number of Respondents
Chemical Safety Board (CSB)
2
U.S. Civil Rights Commission (USCRC)
1
U.S. Consumer Product Safety Commission
(CPSC)
2
Equal Employment Opportunity Commission
(EEOC)
3
Federal Communications Commission (FCC)
1
Federal Election Commission (FEC)
1
Federal Energy Regulatory Commission
(FERC)
3
Federal Labor Relations Authority (FLRA)
1
Federal Maritime Commission (FMC)
4
Federal Mine Safety & Health Review
Commission (FMSC)
2
Federal Trade Commission (FTC)
2
U.S. International Trade Commission (ITC)
3
Legal Services Corporation (LSC)
6
National Credit Union Administration (NCUA)
1
National Labor Relations Board
1
National Science Board (NSB)
5
National Transportation Safety Board (NTSB)
2
Nuclear Regulatory Commission (NRC)
1
U.S. Nuclear Waste Technical Review Board
(NWTRB)
3
Occupational Safety Health & Review
Commission (OSHRC)
2
Postal Regulatory Commission (PRC)
1
Securities and Exchange Commission (SEC)
2
Surface Transportation Board (STB)
2
U.S. Postal Service (USPS)
1
Unidentified
4
Total
56

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Appendix B (General Counsel Survey)

General Counsel Survey Questions & Responses
Question 3: Do you have practices or guidance regarding Sunshine Act matters that are not
reflected in your Sunshine Act regulations? If so, how are any such practices or guidance
documented? (For instance you may have an internal commission procedures manual that
discusses Sunshine Act matters.) Note: Such guidance or practices would include any general
guidance to Commission/Board members (or to such members’ staffs or other agency employees)
regarding actions that are permitted or prohibited by the Sunshine Act (or the agency’s Sunshine
Act regulations). For instance, you might have provided guidance on any limitations on email
communications involving more than one Commission/Board member.



20 of the 40 (50%) responding General Counsels answered that they do have such
guidance.
Most of these agencies maintain internal documents, such as memorandums, orders, and
manuals that address Sunshine Act procedures.

Question 4: Does your agency use notational voting to resolve matters before it? Please estimate the
percentage of matters that are resolved by notational voting as opposed to voting at meetings of the
agency.
Percentage Notational Voting

Agencies with Percentage of Notational Voting

0%
1-10%
11-24%
25-49%
50-74%
75-89%
90-99%
100%

10
5
0
1
2
2
7
5



8 of the 40 General Counsels (20%) reported that the Board did not use notational voting
at all.

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Question 4(a): Does your agency use notational voting to resolve matters before it? Please
estimate the percentage of matters that are resolved by notational voting as opposed to voting at
meetings of the agency.
A. Why does your agency use notational voting?158
Reasons for Notational Voting159
Adjudicatory
Administrative
Confidential Business
In Conjunction with a Meeting
Procedural
Routine
Timely / Deadlines

Number of Times Used For
8
7
1
3
4
14
14

Reasons for Notational Voting
Procedural160
Substantive

Number of Times Used For
39
12

158

Note that all agencies that used notational voting provided a reason for its use.
Adjudicatory refers to notational voting related to resolving adjudications or investigations; Administrative refers
to any notational vote having to do with administrative matters; Confidential Business refers to notational voting that
may involve confidential business transactions; In Conjunction with a Meeting refers to notational voting that is
used in conjunction with a discussion of a matter that occurred at a meeting; Procedural refers to all notational
voting addressing procedural matters; Routine refers to noncontroversial, everyday notational voting; and
Timely/Deadlines refers to notational voting held to meet time or meeting constraints, or other deadlines or to
promote efficiency.
160
In this chart Procedural refers to any notational voting under the following categories: Administrative,
Procedural, Routine, and Timely/Deadlines. Substantive refers to any notational voting under the following
categories: Adjudicatory, Confidential Business, and In Conjunction with a Meeting.
159

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Question 4(b): Are there any guidelines for determining when notational voting is appropriate?
If so, please include a copy of such guidelines or a Code of Federal Regulations (“CFR”) citation
(if your rules for notational voting are included in the CFR).


19 of the 32 (59.38%) General Counsels that reported that the Board uses notational voting also
reported that they had either internal guidelines or guidelines published in the C.F.R. regarding
notational voting.161

Agency
Commodity Futures Trading Commission (CFTC)
U.S. Consumer Product Safety Commission (CPSC)
Election Assistance Commission (EAC)
Farm Credit Administration (FCA)
Federal Deposit Insurance Corporation (FDIC)
Federal Election Commission (FEC)
Federal Maritime Commission (FMC)
Federal Reserve Board (FRB)
Federal Retirement Thrift Investment Board (FRTIB)
Federal Trade Commission (FTC)
U.S. International Trade Commission (ITC)
National Credit Union Administration (NCU)
National Transportation Safety Board (NTSB)
Occupational Safety Health & Review Commission
(OSHRC)
Railroad Retirement Board (RRB)
Securities and Exchange Commission (SEC)
Tennessee Valley Authority (TVA)
U.S. Parole Commission (USPC)
U.S. Postal Service (USPS)

161

Location of Guidelines
17 C.F.R. § 140.12.
Internal Guidelines
Internal Guidelines
Internal Policy Statement
12 C.F.R. § 311.2(b)(3)) & Bylaw
Sections
Internal Directive
Internal Commission Order
Small Reference in Website
“Government in the Sunshine Act”
Memorandum
5 C.F.R. § 1632.2 (c)
16 C.F.R. § 4.14 & Commission
Rule
19 C.F.R. § 201.34(a)(2) & Internal
Directive162
12 C.F.R § 791.4(b)(1)
Board Order, 49 C.F.R. Parts 821
and 825; 49 U.S.C. § 1133
CFR Sections
Board Order 97-233
17 C.F.R. § 200.42
Bylaw Sections
28 C.F.R. § 16.201
39 C.F.R. § 6.7

Two agencies did not respond to this question.

162

This directive describes the ITC’s practice of circulating Action Jackets. “An Action Jacket is a form of
sequential notational voting. The use of Action Jackets allows the ITC Commissioners to act on agency matters
individually, instead of deliberating and voting as a group during an open agency session.” Elkems Metal. Co. v.
United States, Slip Op. 00-166, Unites States Court of International Trade (2000).

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Question 4(c): Is there a publicly available list of actions taken by notational voting? If so,
where? (If it is one your website, you may simply provide the URL.)



16 of the 32 (50%) General Counsels that reported using notational voting indicated they
notify the public in some way of the notational vote.
Some agencies include the vote in the minutes of the next meeting, some agencies file a
media report about the vote, some agencies only maintain an internal list that can be accessed
through FOIA, and some agencies maintain a list on their website.

Agency
Commodity Futures Trading Commission (CFTC)
U.S. Consumer Product Safety Commission
(CPSC)
Election Assistance Commission (EAC)
Equal Employment Opportunity Commission
(EEOC)
Farm Credit Administration (FCA)
Federal Communications Commission (FCC)
Federal Mine Safety & Health Review Commission
(FMSHR)
Federal Reserve Board (FRB)
Federal Retirement Thrift Investment Board
(FRTIB)
Millennium Challenge Corporation (MCC)
National Transportation Safety Board (NTSB)
Nuclear Regulatory Commission (NRC)
Overseas Private Investment Corporation (OPIC)
Railroad Retirement Board (RRB)
Tennessee Valley Authority (TVA)
U.S. Postal Service (USPS)

60

Practice
Announcement of action generally
included in press release
Maintained online at FOIA reading
Room
Yearly report online in Election
Resource Library
Votes are announced at next meeting and
included in transcripts posted on website
Press releases after each meeting that
include notational votes
Online updated weekly list and Daily
Digest
Publishes default cases, which are
decided by notational vote, in Blue
Books
Weekly publication of all actions (not
confidential) on website
Sunshine Act notices reflect the decision
to close a meeting, which often means
that a notational vote occurred
Press release after voting complete
Searchable index of certain cases online
Public decisions posted in online reading
room
Public list of all Board actions posted
online
Maintains an internal list that is available
through a FOIA request
Information filed with minutes of next
meeting
Maintains an internal list of all records
that is available through a FOIA request

DRAFT: For Committee Review

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Question 5: How, if at all, do the Sunshine Act or the agency’s regulations or written practices
and guidance limit Commission/Board member use of e-mail, text-messaging, and similar means
of communication to communicate with other Commission/Board members on official business?


Only 3 of the 40 (7.5%) General Counsels responded that the Sunshine Act affected
member use of e-mail, text-messaging, and similar means of communication.

Question 6: The U.S. Supreme Court has held, and at least one influential set of authors has
asserted, that not all discussions among a quorum of a multi-member agency constitute a
“meeting” that must either be open to the public or fit into one of the Sunshine Act exemptions.
See FCC v. ITT World Communications, 466 U.S. 463 (1984); Richard Berg, et al., AN
INTERPRETIVE GUIDE TO THE GOVERNMENT IN THE SUNSHINE ACT 14-15 (2d ed. 2005). In
particular, these authorities state, discussions among commission or board members need not be
considered meetings if they are “informal background discussions that clarify and expose
varying views” rather than discussions “focused on discrete proposals or issues that will cause or
are likely to cause individual participating members to form reasonably firm positions regarding
matters pending or likely to arise before the agency.”
A. Does your agency hold any sessions attended by a quorum of the Commission/Board
that your agency does not consider to be “meetings” based on the above reasoning?
If so, what sorts of subjects are discussed at such meetings? (Please exclude
meetings to determine whether to hold a meeting, whether to close a meeting, and
whether to change a meeting agenda.)


33 of the 40 (82.5%) agency General Counsels responded that they do not consider a
quorum dispositive for a meeting.

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Question 7: Does your Commission/Board ever have open meetings to discuss questions such
as: “How is the Commission/Board functioning as an agency? How has it performed over the
past year? What have been its major successes and failures? What do we see coming in the next
year, the next five years, or the next ten years? How well are our components serving us? Are we
getting our message out to the industry we regulate and to the public? Are we working effectively
with the Congress?” Is so, what questions are discussed, how frequently does the
Commission/Board have such discussions, and what constraints are placed on such discussions
out of concern for compliance with the Sunshine Act?


17 of the 38 (44.74%) responding General Counsels reported that their Board does have
such meetings.

Question 8: Does your Commission/Board ever hold open meetings that are briefings by staff or
experts on a subject matter that is relevant to an agency's responsibilities but which do not pose
specific problems for agency resolution? Is so, what questions are discussed, how frequently
does the Commission/Board have such discussions, and what constraints are placed on such
discussions out of concern for compliance with the Sunshine Act?


31 of the 40 (77.50%) responding General Counsels reported that they do have such
meetings.

Question 12 (A): For each of the past three fiscal years, 2009-2010, 2008-2009, 2007-2008, what
percentage of meetings were (a) open in their entirety, (b) closed in their entirety pursuant to the
exceptions in the Sunshine Act, (c) open in part and closed in part pursuant to the exceptions in the
Sunshine Act? (If such percentage figures are misleading, you should also provide your estimate of the
percentage of meeting time during which the meeting is closed or the percentage of matters that are
considered in closed session.) 163



163

17 of the 37 (45.95%) responding General Counsels reported that at least 50% of their
meetings were open meetings. 14 of the 37 (37.84%) reported that at least 50% of their
meetings were closed meetings. The remaining 6 (16.22%) reported that at least 50% of
their meetings were partially open and partially closed.

The percentages are averages of self-reported data for 2008, 2009, and 2010.

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Question 12 (B): What are the three Sunshine Act exceptions most frequently invoked by your agency?164

Exemption

Number of Agencies Invoking Exemption

1: Classified Information

3

2: Personnel Policies

4

3: Other Statutes Mandate Confidentiality

6

4: Proprietary Information

7

5: Considering Criminal or Censurable Conduct

2

6: Privacy

5

7: Law Enforcement

6

8: Financial Reports

4
11165

9: Market Stability/Precluding Frustration of
Agency Action
10: Litigation/Adjudication166

13

164

Some agencies provided more than three exceptions.
One of the General Counsels noted that they use 9(A), five General Counsels noted that they use 9(B), one
General Counsel noted that they use 9(A) and 9(B), and three General Counsels did not specify what section of
exception 9 they use.
166
Note that this is not the entirety of exemption 10, which is quite broad.
165

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Question 15: What legal, administrative, or practical problems has your agency encountered or
have you perceived in the implementation of the Sunshine Act? How, if at all, have you sought
to address those issues? Has your agency proposed or supported legislation to amend the
Sunshine Act? If so, please identify the proposed legislation and briefly summarize it. (Instead
of a summary, you could provide congressional testimony or other communications that
described the proposal.)


17 of the 40 (42.5%) General Counsels encountered problems implementing the Act:

Reason Had Trouble Implementing Sunshine Act

Number of Agencies Citing Reason

Was uncertain about definition of meeting
Struggled with the inability to deliberate on
cases in private
Had difficulty maintaining privileged or
deliberative documents used at meetings
Believed the Sunshine Act isolates members of
three-person boards
Had difficulty because of joint boards
Found the notice requirements of meetings
administratively burdensome
Had difficulty with member attendance at
conferences
Struggled with notice requirements during
economic crises
Desired greater flexibility when discussing
adjudication and litigation
Believed the Sunshine Act inhibits open
discussion and adds administrative burdens with
notice requirements
Responded that there is not enough case law on
exemptions
Believed the Sunshine Act inhibits
brainstorming and harms private industries’
ability to advise the Commission of plans and
problems
Believed the Sunshine Act inhibits adjudicatory
functions and isolates three-member boards

4
2
1
1
1
1
1
1
1
1
1
1

1

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Question 16: Do you have any recommendations regarding Sunshine Act procedures that other
agencies might find useful? If so, what are they?


8 of the 38 (21.05%) responding General Counsels provided recommendations to other
agencies:

Recommendation
Suggested making open meetings available to the public through online
streaming video

Type
Best Practices

Suggested other agencies take advantage of new technologies when
providing notice of open meetings
Noted that they have provided internal procedure guidelines and examples
of their notices and notice procedures to other agencies for examples
Noted that making background information and documents publicly
available online before an open meeting had been useful
Noted that making sure a legal counsel was present at all meetings helped
them meet the Sunshine Act requirements
Noted that they provide notice of meetings online and in a news digest and
that maintaining internal procedures on what constitutes business that can be
conducted seriatim was beneficial
Suggested exemptions for adjudication and litigation strategy meetings and
alterations to the requirements for three-member boards
Suggested maintaining internal documents providing guidance on Sunshine
Act procedures

Best Practices

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Best Practices
Best Practices
Best Practices
Best Practices
Legislative
Best Practices

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Question 17: Do you have any recommendations for Sunshine Act reforms?


9 of the 34 (26.47%) responding General Counsels suggested Sunshine Act reforms.

Reform
Would like a deliberative process exemption for matters that are sensitive or
complex in nature
Would like a better definition of “meetings” and “public;” Would like the
definition of “public” to exclude staff
Would like a quorum to not always require open meetings for joint boards
(Boards that consist of three commissioners and other state representatives)
Do not want a majority vote to be required for changes to subject
matter/agenda; Would like a better definition of “meeting” so that it
excludes preliminary discussions
Would like clearer guidance of requirements for conferences, and the
“widely attended gatherings” exception
Would like a delay to be allowed in extenuating circumstances such as a
financial crisis
Previously suggested an exemption for adjudicatory and litigation strategy
matters, as well as sensitive matters
Would like more guidance (court interpretation) of the exemptions
Did not believe that the 1995 ACUS study reforms would be enough; would
like to be exempt from open meeting requirements for several topics:
antidumping and countervailing duty investigations, safeguard
investigations and intellectual property‐based import investigations

66

Type
Legislative
Legislative
Legislative
Legislative /
Best Practices
Legislative /
Best Practices
Legislative
Legislative
Best Practices
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Question 18: In your view, is there a need for additional exemptions permitting meeting closure
or an expansion of current exemptions permitting closure? Are some of the exemptions
unnecessary or excessively broad?


11 of the 33 (33.33%) responding agencies suggested additional exemptions or alterations
to current exemptions.

Exemption Reform
Would like a deliberative process exemption for matters that are sensitive or
complex in nature
Would like the “majority of meetings” requirement to be eliminated from
the exemptions, particularly from exemption 10
Would like closed meetings to be allowed for continuity of operations plans
(COOP)
Would like preliminary discussions to be exempt from the requirements for
multi-member boards
Would like an exemption clearly covering deliberative process that is
parallel to Exemption 5 of the FOIA
Would like an exemption of notice requirements during extenuating
circumstances
In 1995 ACUS report, the agency suggested an exemption for adjudication
and litigation strategy meetings
Believed the current exemptions are overly broad
Would like brainstorming sessions (to develop ideas that may be further
discussed) to be exempted
Would like exemptions for adjudicatory meetings and alterations for three
member boards
Would like exemption 10 to be expanded to cover investigations not
covered by the APA

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Type
Legislative
Legislative
Legislative
Legislative
Legislative
Legislative
Legislative
Legislative
Legislative
Legislative
Legislative

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Appendix C (Responses to the CIRA Sunshine Act Survey)
Question 1: Please describe the type of business your agency conducts through notational
voting. How is the result of a vote taken by that procedure announced (e.g., description in the
next meeting's minutes, press release, website notification)?


Of the five responding agencies, four of them seem to use notational voting for
substantive matters or all matters while only one restricts notational voting to routine
noncontroversial matters. The methods for releasing the results of the voting vary by
agency, as summarized below:
Methods Used to Announce Voting Results

1: Results Announced on an Electronic Calendar or on the Website

2: Press Release
3: Issued Statement or Publication
4: Noted in the Public Record
5: Results Accessible by FOIA Request
6: Results Available in a Public Reading Room
7: Email Notification to Subscribers
8: Public Notification at the Next Meeting

Number of
Responding
Agencies Using
this Method
4
3
3
1
1
1
1
1

Question 2: Please describe the type of business your agency conducts through staff-level
discussions (without any formal meeting of board or commission members).


The type of business conducted by staff-level discussion varies between the responding
agencies. One agency allows staff to address issues previously considered by the board
that do not raise novel issues of policy. Some agencies do not allow for any type of
agency action to be taken through staff level discussions. It did not seem that any
responding agencies delegate substantive decisionmaking to staff.

Question 3: Please describe the type of business your agency conducts through serial meetings
(i.e., a series of meetings, none of which involves a sufficient number of members to constitute a
quorum).


One responding agency has a committee structure involving a group of board members
smaller than a quorum that decides when something is ready to be presented to the full
board. None of the other responding agencies conduct such meetings.

Question 4: Under what circumstances (if ever) might an email exchange amongst agency
members comprise a “virtual meeting” subject to the Sunshine Act?


An email exchange, under the Act, might be a “virtual meeting” if it involves more or
less simultaneous communications, comparable to a conference call, among a quorum of
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Commissioners. The responding agencies all choose not to engage in what could be
considered a “virtual meeting.”
Question 5: Please describe the circumstances under which members of your agency hold
preliminary discussions outside of a formal Sunshine Act meeting (e.g., brainstorming sessions
or briefing meetings).


Some responding agencies have meetings involving board members, while others have no
meetings involving board members. Meetings are most often held to brief board
members. One agency holds private briefings for members focused on reports from staff,
bankers, economists, or consumer advocates concerning the state of the economy. They
conclude that these briefings are exempt insofar as they do not involve decision-making
or the consideration of policy options.

Question 6: Please describe any “best practices” your agency has undertaken to increase the
transparency of open meetings under the Sunshine Act (e.g., posting meeting notices and
relevant documents online or providing online streaming video of meetings).


Agencies use a variety of “best practices” to increase the transparency of open meetings
under the Sunshine Act. Responding agencies use notice of meetings posted to their
website, meeting materials posted to their website, press releases, documents that serve as
a guide to meetings generally, a webcast video of open Board meetings, and a transcript
of open Board meetings available on the internet. One agency broadcasts its meetings on
local television and via phone bridge.

Question 7: Please describe any other “best practices” that your agency has developed in its
efforts to conduct business in compliance with the Sunshine Act that you would commend to
other agencies.


One agency indicated that it publishes a “Guide to the Meetings” in An Interpretive
Guide to the Government in the Sunshine Act. The agency also published sample board
meeting transcripts.

Question 8: Should the definition of “meeting” under the Sunshine Act be revised to make it
clear that brainstorming sessions and other preliminary discussions fall outside the purview of
the Act? If so, does your agency have any proposals for what an improved definition of
“meeting” should include?


Only one agency responded to this question. The one responding agency felt that it
should be made clear that briefings of the nature described in Question 5, where
information is provided without deliberation and no decision is made, are not “meetings”
under the Sunshine Act.

Question 9: Should the Sunshine Act be amended to permit members of three-member boards or
commissions who cannot engage in seriatim meetings without triggering the Act to hold one-on-

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one discussions outside the purview of the Act? If so, what types of discussions should be
exempt from the Act in three-member boards and commissions?


One agency responded to this question. Their response was that seriatim one-on-one
discussions among Commissioners, if not more or less simultaneous, are unlikely to
trigger the Act. With respect to one-on-one discussions of three-member boards or
commissions, it seems desirable to permit this in some fashion, but the Commission’s
staff has no specific recommendations on this point.

Question 10: Should Congress modify the procedures required to close a meeting under the
Sunshine Act (e.g., permit a website notification in lieu of a Federal Register notice)? If so, what
procedural modifications would your agency propose?


Two agencies responded to this question. Both agencies seemed to favor modifying the
procedure to close a meeting by posting a website notification in lieu of a Federal
Register notice.

Question 11: Would you propose any other legislative amendments to the Sunshine Act in order
to facilitate the work of multi-member boards and commissions? If so, what legislative
amendments would your agency propose?


Two responding agencies had proposals in order to facilitate the work of multi-member
boards and commissions. One agency suggested that when the Sunshine Act currently
permits closure of a meeting, such as a meeting involving particular law enforcement
matters, the agency should not be required to announce the meeting in advance. The
second responding agency proposed that they be permitted to delay the announcement of
closed board meetings in extenuating circumstances.

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Appendix D (List of Agencies Subject to the Sunshine Act)
1. Advisory Board for Cuba Broadcasting
2. African Development Foundation
3. Barry Goldwater Scholarship and Excellence in Education Foundation
4. Broadcasting Board of Governors
5. Chemical Safety and Hazard Investigation Board
6. Commission of Fine Arts
7. Commodity Credit Corporation (Board of Directors)
8. Commodity Futures Trading Commission
9. Consumer Product Safety Commission
10. Copyright Office, Library of Congress (Copyright Arbitration Royalty Panels)
11. Corporation for National and Community Service
12. Council on Environmental Quality
13. Delaware River Basin Commission
14. Defense Nuclear Facilities Safety Board
15. Equal Employment Opportunity Commission
16. Export-Import Bank of the United States (Board of Directors)
17. Farm Credit Administration (Office of the Board)
18. Federal Communications Commission
19. Federal Deposit Insurance Corporation (Board of Directors)
20. Federal Election Commission
21. Federal Energy Regulatory Commission
22. Federal Housing Finance Board
23. Federal Labor Relations Authority
24. Federal Maritime Commission
25. Federal Mine Safety and Health Review Commission
26. Federal Open Market Committee
27. Federal Reserve System (Board of Governors)
28. Federal Retirement Thrift Investment Board
29. Federal Trade Commission
30. Foreign Claims Settlement Commission
31. Foreign Service Labor Relations Board
32. Harry S. Truman Scholarship Foundation (Board of Trustees)
33. Inter-American Foundation
34. Legal Services Corporation
35. Marine Mammal Commission
36. Merit Systems Protection Board
37. Millennium Challenge Corporation
38. Mississippi River Commission
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39. National Commission on Libraries and Information Science
40. National Council on Disability
41. National Council on the Arts
42. National Credit Union Administration
43. National Labor Relations Board
44. National Mediation Board
45. National Museum Services Board
46. National Science Foundation (National Science Board)
47. National Transportation Safety Board
48. Neighborhood Reinvestment Corporation (Board of Directors)
49. Nuclear Regulatory Commission
50. Occupational Safety and Health Review Commission
51. Overseas Private Investment Corporation (Board of Directors)
52. Pacific Norwest Electric Power and Conservation Planning Council
53. Postal Rate Commission
54. Railroad Retirement Board
55. Rural Telephone Bank
56. Securities and Exchange Commission
57. State Justice Institute
58. Surface Transportation Board
59. Susquehanna River Basin Commission
60. Tennessee Valley Authority (Board of Directors)
61. Uniformed Services University of the Health Sciences (Board of Regents)
62. United States Institute of Peace
63. United States Postal Service (Board of Governors)
64. U.S. Commission on Civil Rights
65. U.S. Election Assistance Commission
66. U.S. International Trade Commission
67. U.S. Parole Commission

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