Public Access to Records (FACA)
MEMORANDUM FOR COMMITTEE MANAGEMENT OFFICERS
March 14, 2000
FROM: JAMES L. DEAN, DIRECTOR
COMMITTEE MANAGEMENT SECRETARIAT
SUBJECT: Public Access to Advisory Committee Records
The purpose of this memorandum is to provide guidance regarding the circumstances under which requests for records generated by or for Federal advisory committees may be processed under the request and review process established by the Freedom of Information Act (FOIA), 5 U.S.C. 552(a)(3).
Section 10(b) of the Federal Advisory Committee Act (FACA), as amended, (Public Law 92-463, 5 U.S.C. App.) provides that:
"Subject to section 552 of title 5, United States Code, the records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by each advisory committee shall be available for public inspection and copying at a single location in the offices of the advisory committee or the agency to which the advisory committee reports until the advisory committee ceases to exist."
The purpose of section 10(b) is provide for the contemporaneous availability of advisory committee records that, when taken in conjunction with the ability to attend committee meetings, provide a meaningful opportunity to fully comprehend the work undertaken by the committee. Records covered by the exemptions set forth in section 552(b) of FOIA may generally be withheld. However, it should be noted that FOIA Exemption 5 cannot be used to withhold documents reflecting an advisory committee's internal deliberations.
Policy and Analysis.
Although advisory committee records may be withheld under FOIA's provisions if there is a reasonable expectation that the records sought fall within the exemptions contained in section 552(b), agencies may not require members of the public or other interested parties to file requests for non-exempt committee records under the request and review process established by FOIA section 552(a)(3).
In Food Chemical News V. Department of Health and Human Services (980 F. 2nd 1468, 299 U.S. App. DC 25), the District of Columbia Court of Appeals held that:
"...under section 10(b) of FACA an agency is generally obligated to make available for public inspection and copying all materials that were made available to or prepared for or by an advisory committee. Except with respect to those materials that the agency reasonably claims to be exempt from disclosure pursuant to FOIA, a member of the public need not request disclosure in order for FACA 10(b) materials to be made available. Thus, whenever practicable, all 10(b) materials must be available for public inspection and copying before or on the date of the advisory committee meeting to which they apply." (Emphasis added)
Accordingly, agencies may not delay making available non-exempt records to interested parties under FOIA procedures as an administrative convenience, or for other reasons.
The Attorney General issued guidance on October 4, 1993 and September 3, 1999, regarding additional steps that Federal agencies should take to comply with both the letter and the spirit of FOIA. As noted in the memoranda, the Department of Justice (DOJ) "will no longer defend an agency's withholding of information merely because there is a 'substantial legal basis' for doing so. Rather, in determining whether or not to defend a non-disclosure decision (the DOJ) will apply a presumption of disclosure."
Given the plain and unambiguous language contained in section 10(b) of FACA, coupled with controlling case law and DOJ's FOIA guidance, I am encouraging each Committee Management Officer (CMO) to assure the maximum timely availability of covered advisory committee records. If you have not already done so, you should consider:
- Amending agency procedures to facilitate the timely release of requested information and materials;
- Segregating information and materials that must be released under FACA section 10(b) from those that must be processed under FOIA; and,
- Expediting requests for release of information and materials that must be legitimately processed under FOIA, including the provision of timely explanations for unanticipated delays to interested parties.
As always, questions concerning legal issues should be addressed in consultation with the Office of General Counsel.