The Government in the Sunshine Act ("Sunshine Act") governs the right of access to federal agency meetings. Congress passed the Sunshine Act motivated by the idea that citizens have a right to know how the government makes decisions that affect the public interest. The Sunshine Act allows you to attend meetings in which federal agency heads deliberate on agency business. It requires all federal agencies governed by “collegial bodies” to hold open meetings and to provide sufficient notice to allow the public to attend those meetings. The term “collegial bodies” refers to groups of two or more decision-makers that act jointly, such as boards of directors or multiple commissioners. Agencies covered by the Sunshine Act include powerful and important bodies such as the Securities and Exchange Commission (SEC), the Federal Communications Commission (FCC), and the Federal Trade Commission (FTC), as well as lesser known agencies, such as the Marine Mammal Commission, the Railroad Retirement Board, and the Advisory Board for Cuba Broadcasting.
If a covered agency has improperly prevented you from attending a meeting, you may sue the agency in federal court. Among other things, you can obtain a court order prohibiting future violations of the Sunshine Act and a transcript of an improperly closed meeting.
Meetings and Agencies Covered
The Government in the Sunshine Act 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 meetings of certain kinds of agencies, and it only applies to certain kinds of gatherings. Below we take up these issues in turn.
Which Agencies Are Covered?
The Sunshine Act applies to the meetings of federal agencies. An "agency" is a branch of government responsible for the oversight and administration of laws. For instance, the Department of Labor and the Federal Trade Commission are both agencies. Judiciary and legislative bodies, such as courts and congressional committees, are not agencies. For more examples of federal agencies, see Wikipedia's List of United States federal agencies. The Sunshine Act does not apply to any state or local agencies or private entities.
The Sunshine Act only requires certain kinds of agencies to hold open meetings. Some agencies, such as the Environmental Protection Agency, are headed by a single individual, while other agencies, such as the Federal Communications Commission, have more than one head who together run the agency. The Sunshine Act only covers requires the latter type of agency -- agencies headed by a collegial body of two or more members. Moreover, the Sunshine Act only applies to an agency when a majority of the members of its collegial governing body were appointed by the President of the United States and subject to confirmation by the Senate. If a majority of an agency's heads don't fit this description, the agency does not have to hold open meetings. As of 2005, the Sunshine Act required sixty-seven agencies to hold open meetings. Included are many important agencies, such as the SEC, the Federal Elections Commission, and the Federal Energy Regulatory Commission. For a partial list, see Appendix A of the Florida Bar's Reporter's Handbook.
- Agency Subcommittees
If the Sunshine Act applies to an agency, it also applies to certain subcommittees or "subdivisions" of that agency. Specifically, it applies to subcommittees that are "authorized to act on behalf of the agency" and that include at least one member of the collegial body that governs the agency. Therefore, to be covered a subcommittee must have official and formal powers to regulate, derived from a delegation of authority from the governing body of the agency. For example, if the Commissioners of the Commodities Futures Trading Commission created a subcommittee and authorized it to act for the agency with regard to regulation of corn futures, that subcommittee would be subject to the open-meetings requirements of the Sunshine Act.
Which Types of Meetings Are Covered?
The Sunshine Act only applies to certain kinds of meetings. First, at least the number of agency heads required to take action on behalf of the agency must attend the gathering in question. This is the "quorum" requirement. For instance, if an agency can only take legal action if three of its five heads are present, a meeting of two heads need not be open. In the case of an agency subcommittee, a quorum of subcommittee members must be present to constitute a "meeting," but this need not be a quorum of the whole collegial body that governs the agency.
Second, the agency heads must be acting "jointly." The quorum of agency heads in attendance must be involved in the decisionmaking or discussion being conducted. For example, a speech by one agency head, when the other heads are in the audience passively listening, will not constitute a meeting that must be open to the public under the Sunshine Act.
Third, the meeting must involve "deliberation" of agency business. The Sunshine Act does not define "deliberation," but legislative history indicates that Congress meant the term to apply to situations beyond those where agency heads take formal action and to include all significant discussions in which a quorum of members address agency business. On the other hand, the term does not apply to informal background discussions that clarify issues and expose varying views.
An emerging question is whether electronic communication can constitute a meeting that must be open to the public. For instance, if agency heads exchange views via email on a matter of agency business, is that a meeting that must be open to the public? Richard K. Berg, Stephen H. Klitzman, and Gary J. Edles, authors of the American Bar Association's Interpretive Guide to the Government in the Sunshine Act (2d ed. 2005), argue that the Sunshine Act is not limited to face-to-face communications. They note that Congress intended for telephone conference calls to be covered and argue that whether an electronic communication is a "meeting" depends on whether agency heads are communicating simultaneously. For example, a flurry of instant messages between agency heads might be covered because it takes place (relatively) simultaneously. On the other hand, an email exchange taking place over the course of several days would not be a meeting because of the lack of simultaneity. In any event, the law is unclear on this point, and it is unlikely that you will have knowledge of or occasion to challenge the email or instant messaging practices of federal agency heads.
Understanding Your Rights
The Sunshine Act gives "the public" the right to attend covered 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, an agency may close a portion of a meeting to the public under certain circumstances, discussed below.
In order to attend a meeting, you need to know about it first. To address this, the Sunshine Act requires agencies to give notice of their meetings to the public at least one week in advance. The notice must state the time, place, and subject matter of the meeting, and whether the meeting will be open or closed to the public. The notice must also give the telephone number of an official who can answer questions about the meeting. If the agency changes the time, location, or agenda, it must announce the change as soon as possible.
The agency 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, agencies must take additional steps to notify the public. Today, many agencies publish notice of meetings on their websites. Agencies might also post notice on public announcement boards, publish announcements in local newspapers, send announcements on a mailing list, or publish an online digest. Check the websites of the agencies you are interested in for details.
The Sunshine Act does not grant any right to record, photograph, or televise a meeting. As a result, agencies have discretion to permit these activities or not. As a matter of practice, a number of agencies do allow the use of recording devices at meetings. Nevertheless, the agencies that allow recording may put limits on what devices you can use. For instance, the FCC allows only audio recordings during meetings, as well as allowing still, non-flash photography prior to meetings. Some agencies, such as the Nuclear Regulatory Commission, require that you obtain permission in advance to record a meeting.
The Sunshine Act does not give you any right to participate in meetings. Although they are not obligated to do so, some agencies allow the public to participate, subject to limitations designed to maintain order. Agencies may prevent attendees from displaying disruptive posters and signs at public meetings. However, they may not discriminate against signs or other materials based on the viewpoints expressed.
An Exception: Closed Meetings
In certain circumstances, agencies may close portions of meetings to the public. Agencies may only close those portions of meetings that qualify for a statutory exception and must try to keep as much of a meeting open as possible. Agencies 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 records, 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.
Agencies are not obligated to close meetings in the above circumstances; they merely are permitted to do so. Moreover, the Sunshine Act says that an agency should take the public interest into account and should not close a meeting, even when it could, if it would be in the public interest for the meeting to be open.
Agencies may only close meetings by a majority vote of all agency heads. The agency's chief legal officer must write an official explanation of why the meeting has been closed. Agencies 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, an agency must provide public notice of when and where the meeting will occur and what the agency will discuss.
Your Remedies if You Are Denied Access
The Sunshine Act gives "any person" the right to file a lawsuit in federal district court for violations of its requirements. If you win a lawsuit of this kind, you can obtain an injunction against future violations by the agency -- that is, a court order to hold open meetings in the future. You can also obtain a transcript of an improperly closed meeting. You cannot obtain money damages or an order voiding agency action taken at an improperly closed meeting. Strict time limits apply. If you choose to file a lawsuit, you must do so within sixty days after the meeting giving rise to your complaint. If you bring a lawsuit and succeed, the court may award you reasonable litigation expenses and attorneys' fees. On the other hand, a court may order you to pay an agency's attorneys' fees, if it determines that you brought the lawsuit for frivolous reasons or to delay agency action. This would not happen unless your legal claim were utterly and obviously without any merit.
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 agency in question and inform it 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 agency continues to deny your request for access, you should consider filing a lawsuit. Keep in mind the sixty-day time limit noted above. 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.