Government in the Sunshine Act

The Government in the Sunshine Act, 5 U.S.C. § 552b, generally requires multi-member federal agencies (e.g., FCC, SEC) to hold their meetings in public and to give advance public notice of their meetings.  The goal of the Sunshine Act is to promote public access to information about the decision-making processes of the federal government and to improve those processes by exposing them to public view. A longstanding criticism of the Act has been that, despite its laudable goals, its actual effect is to discourage collaborative deliberations at multi-member agencies, because agency members are reluctant to discuss tentative views in public.  Rather than deliberate in public, agencies resort to escape devices, such as holding discussions among groups of fewer than a quorum of the agency’s membership (which are not covered by the Act), communicating through staff, exchanging written messages, or deciding matters by “notation voting” (i.e., circulating a proposal and having members vote in writing).

In 1995, some current and former members of multi-member agencies sent a letter to the Administrative Conference that outlined these criticisms.  A Conference committee conducted a study of the Sunshine Act.   The committee’s report recommended that Congress establish a pilot program, lasting between five and seven years, pursuant to which  a  multi-member  agency  would  be  permitted  to  hold  its  meetings  in  private, provided the agency promptly released a detailed summary of each meeting and met certain other requirements designed to fulfill the purposes of the Act.   The report was issued in 1995 but never came to a vote because the Conference ceased operations in that year.

The Conference is currently planning to re-study the issue of potential reforms to the Sunshine Act.   Adoption of the 1995 committee’s recommendations is one potential outcome of this study but not the only one.   The study will consider the matter in full, and it will address questions such as whether multi-member agencies are still experiencing the same difficulties as were described in the 1995 report; whether the 1995 recommendations are still the best proposal for reform; whether those recommendations are consistent with principles of open government; what alternative proposals, if any, should be considered; and how, if a “pilot program” were enacted, the success of the pilot program could be measured and evaluated to determine whether it should become permanent.