5 U.S.C.
§ 552b. Open meetings
- (a) For purposes of this section -
- (1) the term 'agency' means any agency, as defined in section
552(e) 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;
- (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, except 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 Congress regarding its compliance with such requirements, including a
tabulation of the total number of agency meetings open to the public, the total
number of meetings closed to the public, the reasons for closing such meetings,
and a description of any litigation brought against the agency under this
section, including any costs assessed against the agency in such litigation
(whether or not paid by the agency).
- (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.
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