ficals, "You have to publish a statement setting forth how your proposed membership meets the balance," but whether it would also be plausible to ask the official to put it into the Federal Register and subject it to the usual notice and comment procedures, maybe 60 days. Not simply setting a statement that you have to go to court to challenge but you can challenge through something analogous to the regular rulemaking procedures of the APA. Senator METCALF. It has been our experience that this question of balance is one of the most difficult to meet. It is even more difficult than the openness provision. Yesterday, the Department of Justice said that it took the attitude that when people came in and said, "We would like to close the meeting," then it would ask "What harm would it do to leave it open?" If you take that attitude, then the burden of the proof changes, doesn't it? Professor STECK. Yes. Senator METCALF. I think that you have made a distinct contribution in making that suggestion. Maybe just by enforcement or by continued writing of letters that my staff sends to me every day after reading the Federal Register, which is so voluminous, we will provide a nuisance or an irritant to the administration that is less costly than public hearings. I am concerned about consultants but maybe consultants would be the answer. I agree with you that consultants should be the subject matter of other hearings on other legislation. We should be concerned, as you suggest, about the cost-benefit ratio as we are with other things. Do we get our money's worth out of a committee? Maybe we should make the various agencies file a cost-benefit statement every year with the Appropriations Committee. Is the advice obtained worth the amount of money that we have to expend to get it? You have raised some very interesting questions. We will look forward to working with you to try to develop either executive orders or further legislation. Do you have a question, Mr. Turner? Mr. TURNER. Just a short comment. With the fair balance statement, I think there should be accompanying that a rather detailed list of the affiliations of each of the members-similar to our interlocking directorate study of our committee of the businesses and other professional affiliations so you can get an idea of whether the individual Professor STECK. That is exactly what I had in mind, because if you look through the index now, you keep coming up with people who are listed just as lawyers or accountants or ranchers or professors, and you really don't know where their other interest lies. This dovetails with the consulting aspect of it since we know on certain kinds of committees you may have university scientists who are nonetheless heavy consultants for a particular pharmaceutical or food firms, and whatnot. Senator METCALF. Thank you very much. We will continue to look to look to you for counsel and advice in working out some of these matters in continued oversight in this area. Professor STECK. Thank you very much. [Additional information supplied for the record by Prof. Steck follows:] AGENCY attachment 1 ENERGY RELATED ADVISORY COMMITTEES IN SELECTED AGENCIES 16 SCURCE This category includes a number of individuals or organizations not readily identifiable and categorized through their names. Examples of professionals in this category are, attorneys, physicians, consultants, accountants, ranchers, furmers, people involved in media, and ex- officials or executives. Also included are organizations identified by surnames, such as, Lane, Atker, Dunner, Ziens. U.S. Senate. Subcommittee on Reports, Accounting, and Management. Committee on Government U.S. Senate. Subcommittee on Reports, Accounting, and Management, Committee on Government 70-426 0-76-10 TOTAL 3 6 161 18 1 86 17 18 58 This category includes a number of individuals or seadily identifiable La Galdosa and categorized through their names. Examples of professionals in this category are, atternys, physicmes, consultants, accruntants, rancher's farmers, people involved in media, and ex- officials or executives. Alic included are organizations identified by surnames, Such as, Lane, Atker, Dunner, 21643. SEE UIS Senate Subcommittee on Reports, Accounting, and Management. Committee on Gruernment Operations. U.S. Jinate Subcommittee Reports, Accounting, und Management. Committee on Government Operations. Senator METCALF. Our next witness is Mr. Reuben B. Robertson III. He is a member of the Public Citizen Litigation Group in Washington, D.C., and the legal director of the Aviation Consumer Action Project. TESTIMONY OF REUBEN B. ROBERTSON III, MEMBER OF THE PUBLIC CITIZEN LITIGATION GROUP IN WASHINGTON, D.C., AND LEGAL DIRECTOR OF THE AVIATION CONSUMER ACTION PROJECT Senator METCALF. Mr. Robertson appeared as a witness before the subcommittee's hearings on advisory committees in 1971, as well as our 1974 hearings on corporate disclosure. The Aviation Consumer Action Project has provided us with much. useful and valuable information on relations between and among regulated companies and the Federal regulatory agencies, particularly in the field of aviation. Mr. Robertson has had extensive professional experience in litigation before the Federal courts in matters of administrative law and procedure, including several important cases which have arisen under the Federal Advisory Committee Act. He has also been a member of various advisory panels, including the Civil Aeronautics Board's Advisory Committee on Procedural Reform and its Consumer Affairs, of which he was chairman, so his firsthand experience from that perspective is also of great interest to these hearings. Without any further comment, we welcome you back to the committee again for comment, advice, and counsel on this question. Mr. Robertson? Mr. ROBERTSON. Mr. Chairman and members of the subcommittee, I greatly appreciate the opportunity to participate in these hearings to consider amendments to the Federal Advisory Committee Act. In the slightly more than 3 years since it took effect, the significance and wisdom of that act, and of its policy against secrecy in the activities of thousands of groups advising the Government, have become increasingly apparent. That is not to say, however, that the spirit or letter of the law have been complied with throughout the Government. Although some agencies and some advisory committees have conscientiously sought to live up to its requirements, others have seized upon loopholes and ambiguities in the act-and the absence of any effective sanctions or enforcement process-to flout and resist the congressional mandate. In my view, some revisions and clarifications of the act are now in order, and the proposals of Senator Percy and the Metcalf-Hatfield bill, S. 2974, are definitely on the right track. One particular problem has arisen in the administration of the FACA to which I would urge your most immediate attention, because very core it seriously undercuts the principle of openness that is at the of this legislation. The problem is the abuse of the fifth exemption of the Freedom of Information Act. In reviewing my testimony last night, it seemed that I hadn't sufficiently emphasized in the prepared statement how strongly I feel that the Government's argument on this fifth exemption point is wrong and frivolous. I don't think Congress ever intended that the fifth exemption could be used in the context of the Advisory Committee Act, because the fifth exemption applies only to internal documents in the Government. The advisory committees, by their very definition, are made up of outsiders. If their members were all inside the Government, they wouldn't constitute advisory committees. Senator METCALF. May I interrupt? Mr. ROBERTSON. Yes, sir. Senator METCALF. Doesn't the very fact that we have private individuals participating in the discussion of advisory committees eliminate the use of section 5, which is, as you suggest, for internal official governmental documents where Government officials of the executive department are solely concerned? Mr. ROBERTSON. That is absolutely right, Senator Metcalf. Every court that has decided this question so far has said that exemption 5 is inherently inapplicable to advisory committees. Yet what happens? The Government continues to press this silly exemption claim. They simply force people to go to court if they want to have redress. I don't think the law is unclear. In my view the law is clear, but it is being abused by the Government. That is why I think the Congress should correct this situation right away, to take the load off the courts if nothing else, and certainly to improve the administration of the Act. This exemption was designed to protect internal Government documents which would not generally be available to a private party through discovery in civil litigation against an agency. As the Supreme Court noted last term, Congress specifically had the Government's executive privilege in mind in adopting exemption 5, with the purpose of preventing injury to the quality of agency decisions through inhibition of frank internal discussions of legal or policy matters.1 Various of the agencies are now asserting, however, that the incorporation by reference of exemption 5 into section 10 (d) of the Advisory Committee Act expanded executive privilege, so that it is not only available to persons within the Government, but also to outsiders who serve on advisory committees. Ignoring entirely that exemption 5 on its face applies only to interagency and intraagency matters, it is contended that by analogy the 1 National Labor Relations Board v. Sears, Roebuck & Co., 421 U.S. 132, 150-51 (1975). |