the individual who initially processes requests for documents, she must often perform the delicate task of balancing the public's right of access against the Commission's claims of exemption. Given these oversight functions performed by the DFO, it is obvious that such a person should be familiar with the requirements of FACA and the Freedom of Information Act ("FOIA"), 5 U.S.C. §552, and independent of the Commission. In late August, when I was assigned the task of monitoring the Commission on behalf of the ACLU, I realized I would be attending all Commission meetings and reviewing all the documents the Commission would be looking at. Thus, I immediately set out to identify the Commission's designated federal official, to contact this person, and to explain what I would be doing for the coming year. I travelled to the Commission offices on August 25, 1987, when those offices were still in Rockville, Maryland. that time, I met with Linda Sheaffer, the then executive secretary of the Commission, as well as with staff members. explained to them the work I would be doing. I also inquired about the identity of the designated federal official. Neither Ms. Sheaffer nor her staff even knew of FACA's requirement concerning a DFO. At I Subsequently, after I had had several problems gaining access to documents (see below), I again attempted to identify the DFO so I could discuss my access problems with that person. In a telephone conversation with Ellen Washington, the Department of Health and Human Services' Committee Management officer, on September 17, 1987, I was informed that Linda Scheaffer had been appointed as the designated federal official. However, on September 14, 1987, Sheaffer had been fired from her job as the Commission's executive secretary. On September 18, 1987, I was informed by Richard Loughrey, the Director of the Secretary's Advisory Committee Office, that William J. Walsh, III the Commission's second executive secretary was the designated federal official for the Commission. Accordingly, in a letter to Mr. Loughrey dated September 23, 1987, I asked him to confirm that Walsh was indeed the designated federal official, and I also asked if there might not be a conflict of interest since Walsh, the designated official, was also a member of the Commission's staff. In a letter dated October 16, 1987, Mr. Walsh wrote that he had been appointed the DFO on September 18, 1987, and that prior 2/ whichever official (...continued) - the DFO or the Advisory Committee Management Officer is ultimately deemed responsible for assuring compliance with FACA. to that time, Ms. Sheaffer had been the DFO. Mr. Walsh also wrote: I have discussed with Mr. Loughrey your Federal Advisory Committee Act. Although Mr. Walsh's response was dated October 16, 1987, on that same date, at a Commission meeting at the State Department, the Commission's third executive director Polly Gault introduced herself as the designated federal official of the Commission. Accordingly, I sent yet another letter to the Commission, dated October 22, 1987, in which I once again inquired about the identity of the DFO and once again asked whether the DFO could be a Commission employee. Though I never received a formal response to that request, I have been told that Ms. Gault is definitely the DF03/ and that the Commission's lawyers believe her appointment as DFO raises no potential conflicts of interest. Since her appointment as executive director, Ms. Gault has acted as DFO and has been the person responding to my formal requests for documents. Despite the fact that, some four months into the Commission's work, I have finally been able to identify the DFO with whom to correspond about access problems, I remain terribly troubled by my experience for several reasons. First, the Commission was operating for a solid two months before anybody could tell me who its designated federal official was. Second, in the two months that have elapsed since then, three different persons have served as DFO. Third, none of these people have been even remotely familiar with the requirements of FACA. Fourth, all three of these DFOS have been Commission staff members, lacking the expertise and independence to fairly handle the DFO responsibilities. The lack of a DFO who is familiar with and appreciative of the requirements of the FACA and independent of the Commission has, I believed, contributed in a large measure to the problems I have had with access to meetings and documents that I describe below. If there had been an independent DFO, preferably a lawyer familiar with FACA and FOIA, assigned to the Commission from its inception, I would not have had to spend several frustrating months simply attempting to identify to whom I was to address questions. Moreover, I would have been able to save the 3/ Mr. Walsh is no longer with the Commission. k. The Commission's Failure to Save Comments and Open a Reading Wynitial concam accut icoanent access was not that I in e tented access to tccidents mat only came later but tant in the chacs that has characterized this commission. It tooments. correspondence. etc. would not be properly tim for public inspection. The chacs is aOVICUS tha e Comission has had two different offices were directors, Innumerable staff persons from in four three sets 4/ J. Walsh, the former CFC. acknowledged to me that this m the process by which the CFCs corresponded with the public. * the Scrober 16, 1987 meeting, he told me he had rust seen and siggas a letter to me. The pertinent section of the Act reads: Subject to section 552 of title 5, finited 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. $ U.S.C. App. 2, $10/b). governmental agencies passing through on temporary assignments, personal staffers of various Commissioners coming and going from the Commission offices, and Commissioners themselves quitting. What underlies the chaos is a complete ignorance by all of these countless people about the legal requirements for saving Commission documents for public inspection. Accordingly, I spent a good deal of time in September simply attempting to identify somebody who could inform the Commission members and the Commission staff of its responsibilities to the public in this regard. Failing to find such a responsible public official, I had to spend time on my own attempting to educate the Commission and its staff about the legal requirements for document access. I have discussed these requirements with all three executive directors the Commission has had, with Commission staff members, and with Commissioners themselves. On several occasions during this time period, I also discussed with lawyers from HHS my concern that, because of the chaos at the Commission, documents might be innocently destroyed and my concern that the Commission establish and maintain a library as the law requires. These efforts appear to have finally proved fruitful -- at a closed session on October 15, 1987, lawyers from the Department of Health and Human Services appear to have briefed the Commissioners on the requirements of FACA. I do not know if the Commission staff has been briefed on these legal requirements. Despite this briefing, to the best of my knowledge the Commission does not, to this day, have a reading room or library. I did go to the Commission offices to inspect public documents on one occasion, on September 30, 1987, and I was ushered to an empty conference room. I asked to inspect a number of documents, all of which I was told were not available except for a transcript of the first Commission meeting. Because it was clear to me that nobody on the Commission or on the Commission staff had any idea about the legal requirements for archiving and making documents available, I thought that I could best protect my rights by writing formal requests for documents to the Commission. I also thought these formal requests might urge the Commission and its staff to begin properly storing documents. 6/ Specifically, I had hoped there would be a DFO to undertake this task; however, as my comments above indicate, such a knowledgeable and independent person never emerged. บ Because the minutes of the meeting which I received from the Commission were repeatedly redacted, I cannot say for certain that the Commissioners have been briefed on the legal requirements of saving and storing documents and the public's right of access to such documents. B. The Process of Formal Requests Although I have been forced to resort to submitting these formal requests for documents, it is not without some hesitation. The law clearly requires that documents "shall be available for public inspection and copying." 5 U.S.C. App. 2, §10(b). Such a requirement, once again, means that a member of the public should be able to walk into the Commission offices and gain access to pertinent documents without having to file formal requests and go through formal channels. Moreover, I have encountered two major problems merely in the process of making these formal requests -- first, this procedure has been used to delay and frustrate my access to documents; and second, the procedure the Commission has established for handling these requests utilizes non-objective Commission personnel as information officers and thus is inherently flawed. 1. Frustration and Delay The first formal request I made was on on September 23, 1987, in which I noted that I would come to the Commission offices on September 30 to obtain the requested documents. As I mentioned earlier, my visit to the Commission offices on the 30th was completely unfruitful. Notwithstanding this visit, I received a letter in response to my request on October 16, 1987 telling me that "the documents to which you are entitled to have access are available [at the Commission's offices]." The person who signed this letter, William J. Walsh III, knew full well that I had come to the Commission offices on September 30, 1987 and had, at that time, been denied access to the documents requested. Accordingly, on October 22, 1987, I wrote a follow-up letter. requesting the documents be sent to me and initiating a second round of formal requests. I did not receive any documents in response to these requests until November 23, 1987 and November 24, 1987. On those days I received two packages of documents and notification that some of my requests had been denied. I was informed that I had a right to appeal these denials · but the person to whom I was told to appeal is Admiral James D. Watkins, the Commission's Chairman. 2. Inherently Flawed Procedure - As I mentioned earlier, I was initially surprised that the DFO the person to whom I address my requests for documents was not an independent information specialist familiar with the legal requirements of the FACA and FOIA (as in the agencies' FOIA offices) but instead the executive director of the Commission itself. It should be obvious that an employee of the Commission itself does not have the necessary distance from the Commission's work to objectively assess the releasibility of Commission documents. Nonetheless, I assumed that I would, at |