5 USC 552b; 90 Stat.
1241; Pub. L. 94-409 (September 13, 1976)
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(a) For purposes
of this section—Government in the Sunshine Act
(1) the term “agency” means any
agency, as defined in section 552(e) of this title, 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;
(2) the term “meeting” means 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, but
does not include deliberations required or permitted by subsection
(d) or (e); and
(3)
the term “member” means an individual who belongs to a collegial
body heading an agency.
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(b) Members shall
not jointly conduct or dispose of agency business other than in accordance
with this section. Except as provided in subsection (c), every portion
of every meeting of an agency shall be open to public observation.
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(c) Except in a case where the agency finds that the
public interest requires otherwise, the second sentence of subsection
(b) shall not apply to any portion of an agency meeting, and the requirements
of subsections (d) and (e) shall not apply to any information pertaining
to such meeting otherwise required by this section to be disclosed
to the public, where the agency properly determines that such portion
or portions of its meeting or the disclosure of such information is
likely to—
(1) disclose matters that
are (A) specifically authorized under criteria established by an Executive
order to be kept secret in the interests of national defense or foreign
policy and (B) in fact properly classified pursuant to such Executive
order;
(2) relate solely
to the internal personnel rules and practices of an agency;
(3) disclose matters specifically
exempted from disclosure by statute (other than section 552 of this
title), provided that such statute (A) requires that the matters be
withheld from the public in such a manner as to leave no discretion
on the issue, or (B) establishes particular criteria for withholding
or refers to particular types of matters to be withheld;
(4) disclose trade secrets
and commercial or financial information obtained from a person and
privileged or confidential;
(5) involve accusing any person of a crime,
or formally censuring any person;
(6) disclose information of a personal
nature where disclosure would constitute a clearly unwarranted invasion
of personal privacy;
(7) disclose investigatory records compiled for law enforcement purposes,
or information which if written would be contained in such records,
but only to the extent that the production of such records or information
would (A) interfere with enforcement proceedings, (B) deprive a person
of a right to a fair trial or an impartial adjudication, (C) constitute
an unwarranted invasion of personal privacy, (D) disclose the identity
of a confidential source and, in the case of a record compiled by
a criminal law enforcement authority in the course of a criminal investigation,
or by an agency conducting a lawful national security intelligence
investigation, confidential information furnished only by the confidential
source, (E) disclose investigative techniques and procedures, or (F)
endanger the life or physical safety of law enforcement personnel;
(8) disclose information
contained in or related to examination, operating, or condition reports
prepared by, on behalf of, or for the use of an agency responsible
for the regulation or supervision of financial institutions;
(9) disclose information the premature
disclosure of which would—
(A) in the case of an agency which regulates
currencies, securities, commodities, or financial institutions, be
likely to (i) lead to significant financial speculation in currencies,
securities or commodities, or (ii) significantly endanger the stability
of any financial institution; or
(B) in the case of any agency, be likely
to significantly frustrate implementation of a proposed agency action,
except that subparagraph (B) shall not apply in any instance where
the agency has already disclosed to the public the context or nature
of its proposed action, or where the agency is required by law to
make such disclosure on its own initiative prior to taking final agency
action on such proposal; or
(10) specifically concern the agency’s
issuance of a subpena, or the agency’s participation in a civil action
or proceeding, an action in a foreign court or international tribunal,
or an arbitration, or the initiation, conduct, or disposition by the
agency of a particular case of formal agency adjudication pursuant
to the procedures in section 554 of this title or otherwise involving
a determination on the record after opportunity for a hearing.
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(d) (1) Action under subsection (c)
shall be taken only when a majority of the entire membership of the
agency (as defined in subsection (a)(1)) votes to take such action.
A separate vote of the agency members shall be taken with respect
to each agency meeting a portion or portions of which are proposed
to be closed to the public pursuant to subsection (c), or with respect
to any information which is proposed to be withheld under subsection
(c). A single vote may be taken with respect to a series of meetings,
a portion or portions of which are proposed to be closed to the public,
or with respect to any information concerning such series of meetings,
so long as each meeting in such series involves the same particular
matters and is scheduled to be held no more than thirty days after
the initial meeting in such series. The vote of each agency member
participating in such vote shall be recorded and no proxies shall
be allowed.
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(2) Whenever any person
whose interests may be directly affected by a portion of a meeting
requests that the agency close such portion to the public for any
of the reasons referred to in paragraph (5), (6), or (7) of subsection
(c), the agency, upon request of any one of its members, shall vote
by recorded vote whether to close such meeting.
(3) Within one day of any vote taken pursuant
to paragraph (1) or (2), the agency shall make publicly available
a written copy of such vote reflecting the vote of each member on
the question. If a portion of a meeting is to be closed to the public,
the agency shall, within one day of the vote taken pursuant to paragraph
(1) or (2) of this subsection, make publicly available a full written
explanation of its action closing the portion together with a list
of all persons expected to attend the meeting and their affiliation.
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(4) Any agency, a majority
of whose meetings may properly be closed to the public pursuant to
paragraph (4), (8), (9)(A), or (10) of subsection (c), or any combination
thereof, may provide by regulation for the closing of such meetings
or portions thereof in the event that a majority of the members of
the agency votes by recorded vote at the beginning of such meeting,
or portion thereof, to close the exempt portion or portions of the
meeting, and a copy of such vote, reflecting the vote of each member
on the question, is made available to the public. The provisions of
paragraphs (1), (2) and (3) of this subsection and subsection (e)
shall not apply to any portion of a meeting to which such regulations
apply: Provided, That the agency shall, except to the extent
that such information is exempt from disclosure under the provisions
of subsection (c),
provide the public with public announcement of the time, place, and
subject matter of the meeting and of each portion thereof at the earliest
practicable time.
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(e) (1) In 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. Such announcement shall
be made unless a majority of the members of the agency determines
by a recorded vote that agency business requires that such meeting
be called at an earlier date, in which case the agency shall make
public announcement of the time, place, and subject matter of such
meeting, and whether open or closed to the public, at the earliest
practicable time.
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(2) The
time or place of a meeting may be changed following the public announcement
required by paragraph (1) only if the agency publicly announces such
change at the earliest practicable time. The subject matter of a meeting,
or the determination of the agency to open or close a meeting, or
portion of a meeting, to the public, may be changed following the
public announcement required by this subsection only if (A) a majority
of the entire membership of the agency determines by a recorded vote
that agency business so requires and that no earlier announcement
of the change was possible, and (B) the agency publicly announces
such change and the vote of each member upon such change at the earliest
practicable time.
(3)
Immediately following each public announcement required by this subsection,
notice of the time, place, and subject matter of a meeting, whether
the meeting is open or closed, any change in one of the preceding,
and the name and phone number of the official designated by the agency
to respond to requests for information about the meeting, shall also
be submitted for publication in the Federal Register.
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(f) (1) For every meeting closed pursuant
to paragraphs (1) through (10) of subsection (c), the General Counsel
or chief legal officer of the agency shall publicly certify that,
in his or her opinion, the meeting may be closed to the public and
shall state each relevant exemptive provision. A copy of such certification,
together with a statement from the presiding officer of the meeting
setting forth the time and place of the meeting, and the persons present,
shall be retained by the agency. The agency shall maintain a complete
transcript or electronic recording adequate to record fully the proceedings
of each meeting, or portion of a meeting, closed to the public, except
that in the case of a meeting, or portion of a meeting, closed to
the public pursuant to paragraph (8), (9)(A), or 10 of subsection
(c), the agency shall maintain either such a transcript or recording,
or a set of minutes. Such minutes shall fully and clearly describe
all matters discussed and shall provide a full and accurate summary
of any actions taken, and the reasons therefor, including a description
of each of the views expressed on any item and the record of any rollcall
vote (reflecting the vote of each member on the question). All documents
considered in connection with any action shall be identified in such
minutes.
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(2) The agency shall make
promptly available to the public, in a place easily accessible to
the public, the transcript, electronic recording, or minutes (as required
by paragraph (1)) of the discussion of any item on the agenda, or
of any item of the testimony of any witness received at the meeting,
except for such item or items of such discussion or testimony as the
agency determines to contain information which may be withheld under
subsection (c). Copies of such transcript, or minutes, or a transcription
of such recording
disclosing the identity of each speaker, shall be furnished to any
person at the actual cost of duplication or transcription. The agency
shall maintain a complete verbatim copy of the transcript, a complete
copy of the minutes, or a complete electronic recording of each meeting,
or portion of a meeting, closed to the public, for a period of at
least two years after such meeting, or until one year after the conclusion
of any agency proceeding with respect to which the meeting or portion
was held, whichever occurs later.
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(g) Each agency
subject to the requirements of this section shall, within 180 days
after the date of enactment of this section, following consultation
with the Office of the Chairman of the Administrative Conference of
the United States and published notice in the Federal Register of
at least thirty days and opportunity for written comment by any person,
promulgate regulations to implement the requirements of subsections
(b) through (f) of this section. Any person may bring a proceeding
in the United States District Court for the District of Columbia to
require an agency to promulgate such regulations if such agency has
not promulgated such regulations within the time period specified
herein. Subject to any limitations of time provided by law, any person
may bring a proceeding in the United States Court of Appeals for the
District of Columbia to set aside agency regulations issued pursuant
to this subsection that are not in accord with the requirements of
subsections (b) through (f) of this section and to require the promulgation
of regulations that are in accord with such subsections.
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(h) (1) The district courts of the
United States shall have jurisdiction to enforce the requirements
of subsections (b) through (f) of this section by declaratory judgment,
injunctive relief, or other relief as may be appropriate. Such actions
may be brought by any person against an agency prior to, or within
sixty days after, the meeting out of which the violation of this section
arises, except that if public announcement of such meeting is not
initially provided by the agency in accordance with the requirements
of this section, such action may be instituted pursuant to this section
at any time prior to sixty days after any public announcement of such
meeting. Such actions may be brought in the district court of the
United States for the district in which the agency meeting is held
or in which the agency in question has its headquarters, or in the
District Court for the District of Columbia. In such actions a defendant
shall serve his answer within thirty days after the service of the
complaint. The burden is on the defendant to sustain his action. In
deciding such cases the court may examine in camera any portion of
the transcript, electronic recording, or minutes of a meeting closed
to the public, and may take such additional evidence as it deems necessary.
The court, having due regard for orderly administration and the public
interest, as well as the interests of the parties, may grant such
equitable relief as it deems appropriate, including granting an injunction
against future violations of this section or ordering the agency to
make available to the public such portion of the transcript, recording,
or minutes of a meeting as is not authorized to be withheld under
subsection (c) of this section.
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(2) Any Federal court otherwise authorized
by law to review agency action may, at the application of any person
properly participating in the proceeding pursuant to other applicable
law, inquire into violations by the agency of the requirements of
this section and afford such relief as it deems appropriate. Nothing
in this section authorizes any Federal court having jurisdiction solely
on the basis of paragraph (1) to set aside, enjoin, or invalidate
any agency action (other than an action to close a meeting or to withhold
information under this section) taken or discussed at any agency meeting
out of which the violation of this section arose.
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(i) The court may assess against any party reasonable attorney fees
and other litigation costs reasonably incurred by any other party
who substantially prevails in any action brought in accordance with
the provisions of subsection (g) or (h) of this section, except that
costs may be assessd against the plaintiff only where the court finds
that the suit was initiated by the plaintiff primarily for frivolous
or dilatory purposes. In the case of assessment of costs against an
agency, the costs may be assessed by the court against the United
States.
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(j) Each agency subject to the requirements of this
section shall annually report to the Congress regarding the following:
(1) The changes in the policies
and procedures of the agency under this section that have occurred
during the preceding 1-year period.
(2) A tabulation of the number of meetings
held, the exemptions applied to close meetings, and the days of public
notice provided to close meetings.
(3) A brief description of litigation or
formal complaints concerning the implementation of this section by
the agency.
(4) A brief
explanation of any changes in law that have affected the responsibilities
of the agency under this section.
(k)
Nothing herein expands or limits the present rights of any person
under section 552 of this title, except that the exemptions set forth
in subsection (c) of this section shall govern in the case of any
request made pursuant to section 552 to copy or inspect the transcripts,
recordings, or minutes described in subsection (f) of this section.
The requirements of chapter 33 of title 44, United States Code, shall
not apply to the transcripts, recordings, and minutes described in
subsection (f) of this section.
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(l) This
section does not constitute authority to withhold any information
from Congress, and does not authorize the closing of any agency meeting
or portion thereof required by any other provision of law to be open.
(m) Nothing in this section authorizes any agency
to withhold from any individual any record, including transcripts,
recordings, or minutes required by this section, which is otherwise
accessible to such individual under section 552a of this title.
[5 USC 552b.
As amended by act of Dec. 21, 1995 (109 Stat. 734).]
