The Federal Advisory Committee Act ("FACA"), located at 5 U.S.C. App. 2, gives you a right of access to the meetings of federal advisory committees. Advisory committees are groups formed by the government to give advice or make recommendations to the the President of the United States or a federal agency. Their membership usually consists of a mix of government officials and private citizens with expertise relating to a specific issue of government concern. If an advisory committee improperly prevents you from attending or contributing to a meeting, or denies you access to documents prepared by or for committee members, you may sue the federal agency that supervises the committee in federal court. Among other things, you can obtain a court order prohibiting future violations of FACA and a transcript of an improperly closed meeting.
FACA entitles you to attend many government meetings, but it does not apply to every gathering of every government body. There are two important limitations: the law only applies to the meetings of certain types of committees, and it only applies to certain kinds of gatherings. Below we take up these issues in turn.
What Government Bodies Are Covered?
FACA gives you rights with respect to the meetings of federal advisory committees. The term "advisory committee" means any committee, board, commission, council, conference, panel, task force, or other similar group, which is created "in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government." 5 U.S.C. App. 2, § 3 (scroll down). To come under FACA, an advisory committee also must be
- established by statute or reorganization plan;
- established or utilized by the President; or
- established or utilized by one or more federal agencies.
In addition, it must have at least one member who is not a government official.
There are over 1,000 federal advisory committees, dealing with topics large and small. It's somewhat hard to get your head around what an advisory committee is without some examples. The United States National Commission for the United Nations Educational, Scientific, and Cultural Organization (UNESCO) is an advisory committee with members from federal, state, and local government as well as non-governmental organizations. It makes recommendations to the State Department on matters relating to international development and humanitarian aid. For another example, the Visiting Committee on Advanced Technology is an advisory committee with members mostly from private technology companies that advises the Department of Commerce on emerging technology issues. The U.S. Air Force Board of Visitors is an advisory committee created by an Act of Congress, which is made up of private citizens and members of Congress, and which acts like a board of trustees for the Air Force Academy. To explore the government's list of advisory committees, conduct a search at the FACA database. Click "Public Access" and then "Committees Search" to get started. There, you can search for advisory committees by name or area of interest.
A few advisory committees are exempt from the open meetings requirements. Advisory committees established by the National Academy of Sciences, the National Academy of Public Administration, the CIA, and the Federal Reserve Board do not need to meet the open-meetings requirements discussed below.
What Is A "Meeting"?
A "committee meeting" means "any gathering of advisory committee members (whether in person or through electronic means) held with the approval of an agency for the purpose of deliberating on the substantive matters upon which the advisory committee provides advice or recommendations." 41 C.F.R. § 102-3.25 (emphasis added). The term "meeting" does not include situations where committee members get together solely to gather information, conduct research, or analyze relevant issues and facts in preparation of a meeting. It also does not include situations where committee members gather solely to discuss administrative matters of the advisory committee or to receive administrative information from a federal official or agency. See 41 C.F.R. § 102-3.160.
Understanding Your Rights
FACA gives "the public" the right to attend advisory committee meetings. The law does not limit access to meetings to a specific category of people or a profession, such as "the traditional press." Anyone may attend. However, the President may choose to close advisory committee meetings for reasons of national security, and an advisory committee may close portions of meetings to the public under certain circumstances, discussed below.
FACA also gives you a right to submit your views to an advisory committee, which means that you are entitled to appear before it or file statements with it. A committee may place reasonable limitations on this right of participation.
In order to attend a meeting, you need to know about it first. To address this, FACA requires advisory committees to give notice of their meetings to the public at least 15 days before the meeting. The notice must state the time, place, and purpose of the meeting, the name of the committee, and the topics to be discussed. The notice must also state whether all or part of the meeting will be closed to the public and give the telephone number of an official who can answer questions about the meeting. See 41 C.F.R. § 102-3.150.
An advisory committee must publish notice in the Federal Register, which is a daily government publication containing routine notices. Since most people do not read the Federal Register, committees generally take additional steps to notify the public of their meetings. You can find notices for upcoming advisory committee meetings using the FACA Database.
FACA does not grant you any right to record, photograph, or televise a meeting. As a result, it is up to the committee's discretion whether to allow you to do so.
Transcripts and Documents
FACA requires advisory committees and the agencies supervising them to provide transcripts of committee meetings to the public at the cost of duplication. The law also requires advisory committees to keep detailed minutes of their meetings.
Subject to certain exceptions, FACA also gives you the right to inspect the documents, reports, and other records made available to or prepared for or by an advisory committee (which includes minutes). You are entitled to inspect these documents before or at the time of the meetings to which they apply. You can also inspect these materials after the meeting in question by visiting the relevant agency or advisory committee headquarters, and you can get copies for a small fee. An agency or advisory committee may not require you to use Freedom of Information Act (FOIA) procedures in order to obtain access to these documents, but an agency or advisory committee may invoke the statutory exemptions to the disclosure of documents found in FOIA in order to deny access to them. For more information on FOIA procedures and exemptions, see the Access to Records from the Federal Government section.
An Exception: Closed Meetings
In certain circumstances, advisory committees may close portions of meetings to the public. Committees may only close those parts of meetings that qualify for a statutory exemption and must try to keep as much of a meeting open as possible. Advisory committees may close a portion of a meeting when that portion would:
- disclose classified national security or foreign policy matters;
- relate only to internal personnel management of the agency;
- disclose information protected by statute;
- disclose protected, confidential trade secrets or personal financial or commercial information;
- involve accusing someone of a crime or formally censuring someone;
- disclose personal information such as to constitute an invasion of privacy;
- disclose law enforcement investigation recrods, information, or techniques, or endanger the physical safety of law enforcement officials;
- disclose information prepared by, or for the use of, an agency responsible for the regulation of financial institutions;
- prematurely disclose information in a way that would harm the implementation of agency action or cause financial speculation; or
- specially concern an agency's participation in certain formal legal processes.
The supervising agency's chief legal officer must write an official explanation of why the meeting has been closed. Committees generally must maintain a transcript or electronic recording of closed meetings and make all non-exempt portions of the transcript or recording available to the public. Even for a closed meeting, a committee must provide public notice of when and where the meeting will occur and what it will discuss.
In addition, as noted above, the President can close meetings for national security reasons.
Your Remedies if You Are Denied Access
FACA itself does not authorize a private citizen to bring a lawsuit for violation of its open-meetings and document-disclosure requirements. Whether a court would grant such a right to bring a lawsuit is uncertain, but doubtful. Nevertheless, the Administrative Procedure Act (APA) may enable you to bring a lawsuit in federal court for violations of FACA. Under the APA, you can sue the federal agency that supervises the advisory committee and committee members who are federal agency officials. It does not look like the APA authorizes you to sue the advisory committee itself, or the President or Vice President, regardless of their role in creating or utilizing the advisory committee in question. If you win a lawsuit under the APA, you can obtain an injunction against future violations by the advisory committee -- that is, an order to hold open meetings or provide documents in the future. You also can obtain a transcript of an improperly closed meeting. You cannot, however, obtain money damages.
However, a lawsuit is often a slow and expensive solution, so it is generally better to resolve a dispute without going to court. In the event that you are denied access to a meeting, you should contact the advisory committee or supervising agency in question and indicate that you believe your rights have been violated and that you are willing to bring a legal action. You should submit your complaint in writing whenever possible. If the advisory committee or agency continues to deny your request for access, you should consider filing a lawsuit. If you decide to sue, there may be public interest organizations that would be willing to take on your case for free or for a reduced rate. Please see the Finding Legal Help section for details on finding legal representation.