Sunshine Law

In 1976, Congress passed the Government in the Sunshine Act (5 U.S.C. 552b), which took effect the next year. The legislation was modeled on an earlier Florida Sunshine Act. Its purpose was to provide Americans with open access to the meetings of some 50 federal agencies, commissions, and boards. Partly in response to the Watergate scandal earlier in the decade, this law and other antisecrecy measures were enacted to make sure that government agencies, deliberations were open to public scrutiny. The act works in concert with the Federal Advisory Committee Act of 1972, which required that all meetings of federal advisory committees serving the executive branch be open to public observation.

Both this and similar state statutes do not affect or govern the meetings of legislative bodies such as Congress. While sessions for the House are typically [Page 1351]open, the U.S. Senate occasionally holds closed meetings to discuss treaties or personnel issues. For example, during the impeachment trial of President Bill Clinton in 1999, the Senate heard evidence in open session but met in closed session to deliberate.

Generally, agencies must provide at least one week's notice prior to each meeting. The law defines a “meeting” as deliberations of a quorum of members that result in conduct of agency business. This “sunshine” notice must provide the time, place, and subject of the meeting. In addition, the agency must provide the name and phone number of a designated official or contact information regarding whether the meeting is to be open or closed. According to the act, meetings cannot be presumptively closed. Therefore, an agency must vote in advance and make a written copy of the vote available to the public. A majority of the agency must vote in favor of closure and then the agency must also provide a full written explanation of its actions for closing part or all of a meeting.

The law provides for nearly a dozen exemptions that qualify for closing meetings and they are similar in nature to those included in the Freedom of Information Act. They include the following:

• 1.
  Issues of national defense and foreign policy
• 2.
  Discussion of internal personnel rules and practices
• 3.
  Statutory exemptions provided under law
• 4.
  Trade Secrets and proprietary information that would injure parties if made public
• 5.
  Accusation of crime or formal censure
• 6.
  Personal privacy
• 7.
  Investigatory records such as those collected by law enforcement
• 8.
  Financial institution reports
• 9.
  Disclosure of information that could lead to financial speculation or that would frustrate implementation of agency policy.
• 10.
  Issuance of subpoena, participation in civil action or proceeding, or formal agency
• 11.
  Adjudication

Some executive agencies such as the Federal Trade Commission hold many closed meetings because much of the work of the commission encompasses issues that fall under exemption 10. Lastly, agencies must provide Congress with an annual report regarding their policies, an accounting of the number of meetings held, and whether exemptions applied to the meetings.

The law also includes a general prohibition on ex parte communication between government agency decision makers and outside interested parties as a result of this legislation. Ex parte literally means “for one party.” The idea is that last-minute lobbying should not take place so that one interested party has a better chance to succeed in a decision or rulemaking.

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