(a) For purposes of this section -
(1) the term ''agency'' means any agency, as defined in
section 552(e)
(FOOTNOTE 1) 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;
(FOOTNOTE 1) Section 552(e) of this title, referred to in
subsec. (a)(1), was redesignated section 552(f) of this title by
section 1802(b) of Pub. L. 99-570.
(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.
(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. (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, that
subparagraph (B) shall not apply in any instance where the
agency has already disclosed to the public the content 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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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 assessed 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.
(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.
(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.
