At broad oversight hearings on open government laws this
June -- held before the House Government, Information and Technology Subcommittee -- Washington attorney Randolph Mays testified about the conclusions reached by a special committee of the U.S. Administrative Conference on the Government in the Sunshine Act, the federal open meetings statute. The committee concluded that the Act's requirements were an obstacle to deliberations by agencies administered by collegial bodies -- such as the Nuclear Regulatory Commission or the Securities and Exchange Commission -- and recommended a pilot program to last five to seven years allowing such agencies to meet in private
as long as the meeting was memorialized by a detailed summary made public no later than five days after the meeting.
Mays pointed out that "this is more information about the status and nature of the consideration of a matter than the public now receives when closed-door deliberations are conducted through staff or through one-on-one meetings of agency members. In these cases, the public doesn't even know a matter is being discussed."
The federal government was somewhat late to the idea of open public meetings. The Government in the Sunshine Act was passed by Congress in 1976, modeled after Florida's law and sponsored primarily by Sen. Lawton Chiles (D-Fla.), now governor of Florida. The Act was based on the idea that the public ought to have an opportunity to be present at discussions of public business. Generally, the Act has worked reasonably well, but agencies and members of the Washington legal community have never quite gotten used to the idea, keeping up a continual stream of complaints about how deliberating in public actually harms the deliberative process.
Mays summarized opponents' arguments well, noting that "the Committee found several reasons why meaningful collective deliberation (as opposed to mere announcements by individual agency members of previously arrived-at positions) generally does not take place at the public meeting. Among the reasons: concern that providing initial views publicly, without sufficient thought and information, may harm the public interest by irresponsibly introducing uncertainty or confusion to industry, financial markets, or the general public; a desire on the part of members to speak with a uniform voice on matters of particular importance or to develop negotiating strategies which might be thwarted if debated publicly; reluctance of an agency member to embarrass another agency member or himself through inadvertent, argumentative or exaggerated statements; concern that an agency member's statements may be used against the agency in subsequent litigation, or be misunderstood by the public or the press, as for example, when the agency member is testing a position by 'playing devil's advocate' or merely 'thinking out loud' in the early stages of deliberation.
"Many observers agree that Sunshine meetings typically are sterile affairs," Mays added, "with agency members most often doing little more than announcing or briefly explaining decisions they've already reached. (Of course, in most cases, the decisions announced at the public meeting will be released promptly to the public in the form of agency orders and opinions fully setting forth the basis and purpose of the agency action and fully subject not only to judicial review but public debate.)"
To get around these onerous requirements, "agency members rely on their staffs (who are not subject to the Sunshine Act) to 'negotiate' with the staff members of other commissioners, or in one-on-one meetings with other commissioners. (Note that even one-on-one meetings are prohibited if the agency has three or less members.) While this mode of operation enhances the power of the commissioners' staffs, and requires an extraordinary increase in time and effort if agency members hold a series of rotating one-on-one meetings with their fellow agency members, it does little to promote collegiality among the commissioners."
Mays then wondered: "What to do? Some who agree that Sunshine meetings generally do not provide the public with a real view of agency decision-making say that the fault lies with the agency members. They are public officials, and despite the concerns cited above, they should be forced to 'deliberate' in public. In other words, it's not the Sunshine Act that needs reforming, it's the public officials."
Just maybe, he's hit on something. The difference between private business and government is that government conducts the public's business and Congress and state legislatures have uniformly made the determination that much of the public's business is best conducted in public. Many members of federal agencies, such as the NRC, come from industry where they are used to making decisions behind closed doors. When they find out they have to make decisions in public, it is an experience that runs counter to the way in which they have made decisions throughout their professional lives. But even in publicly owned corporations, stockholders can attend annual meetings and often grill company officials about their decisions.
Suggesting that people are incapable of deliberating in public is to admit that most people feel more comfortable in small groups than in large ones. Many people are hesitant to speak up in a group for fear of sounding foolish. But should classes at public universities, for example, be conducted on a one-on-one tutorial level to save students from the potential embarrassment of asking the professor a foolish question before the class? Commissioners at the NRC or SEC are, hopefully, men and women of considerable professional achievement, knowledgeable and articulate in their fields. These are not the kind of people who we should assume will cringe at the idea of allowing the public to follow their deliberations.
Allowing such agencies to deliberate outside the public view is nothing short of inviting them to make decisions in secret. Most communities would not stand for their city councils or school boards to routinely meet in private to conduct clearly public business. And when they do, the case law suggests that courts sanction them for their improper, if not illegal, behavior.
Making decisions in public is not a perfect solution in all instances, and there probably are situations in which public bodies should have an opportunity to reflect about some of the issues involved in reaching a decision without holding a public meeting in every instance. But the democratic principles at stake in the idea that public business should take place in public are so great that we should not dilute the statutes that preserve that right without very serious consideration.
Harry Hammitt is editor/publisher of Access Reports, a newsletter published in Lynchburg, Va., covering open government laws and information policy issues. E-mail: