remedies should be spelled out in the statute so that the litigants aren't required to be exhausted, rather than the remedies.

Mr. TURNER. I don't know of any definition of standing that includes the exhaustion of remedies. Does that come later?

Mr. ROBERTSON. They are two separate concepts. They are related but separate concepts. As a practical matter, the courts tend to be more comfortable if the person suing has actually asked the agency to cure its own violation before coming to court.

In some cases there is not time to do that, or it would be futile to do it.

Mr. TURNER. FOIA provides for administrative appeals procedure at the administrative level with respect to their quest for documents. If the agency fails to comply with those administrative procedures, the petitioner is deemed in the act to have exhausted his administrative remedies for purposes of going to court.

Given the 30-day period between notice and the holding of the closed meeting, does it make any sense to provide for such agency appeal procedures? I mean shouldn't a party for cause be able to go to court at any time after that notice to close the meeting without getting entangled in administrative redtape or being faced with the requirement that he exhausts administrative remedies?

He has 30 days and it is going to be a closed meeting. He may not only be exhausted, but the meeting may well be closed and have happened before he ever achieved his administrative remedies.

Mr. ROBERTSON. Yes, this is right. I think the agency's decision to close a meeting should be a very carefully considered one. There should be internal safeguards on this decision. So the need for administrative appeals at various levels should not even exist when it comes to closing meetings.

As I suggested, you might consider using such safeguards as approval by the Attorney General, based on a written determination by the agency head, with a certificate that there is no conflict of interest involved.

Procedures like that would certain abnegate any need for further administrative procedures before going to court.

If I can say something about the freedom of information procedures, these have themselves been too burdensome, I think. These procedures can take months to complete before you can even go to court-literally months.

They frequently involve two different levels of administrative review within the agency. Some agencies require a written request even to initiate the process. Generally, I think it has not worked out as speedily as was originally intended.

Mr. TURNER. I think the point I wanted to make, and this is my final point, is that when you go so far as to put a notice of a meeting in the Federal Register, and the Federal Register knows the meeting is going to be held and it is going to be closed, that that in fact is a final order.

Mr. ROBERTSON. That would be my view. Yet, as a practical matter under the present law, when you are litigating these cases, if you have the time, you do try to get a separate response from the agencis so the court is satisfied that you have done everything you could before you came to the court.

I think if the statute dealt with this, it should spell out precisely what is required, if anything.

I think that your interpretation is the best one with respect to determinations to close meetings.

Mr. TURNER. Thank you.

Mr. ROBERTSON. A different case arises when you are talking about other kinds of violations of the act-balance of membership, and so forth.

I think it makes a lot of sense to go to the agency, to have a procedure for going back to the agency and saying, "Look, you really didn't do the balanced membership very well here."

But when you are talking about closed meetings the die is cast, and the meeting is going to go forward, and time is of the essence. So I would certainly hope that there wouldn't be a lot of burdensome extra procedures to go through.

Senator METCALF. Thank you very much for your help and your assistance, Mr. Robertson. As I said, we look forward to continuing to work with you on our continuous attention to this special problem. Mr. ROBERTSON. Thank you.

Senator METCALF. The subcommittee will be in recess until 10 o'clock tomorrow. We will go back to our meeting room 3302.

(Whereupon, at 12:55 p.m., the subcommittee recessed, to reconvene at 10 a.m., Wednesday, March 10, 1976.)

The subcommittee met at 10 a.m., pursuant to recess, in room 3302, Dirksen Senate Office Building, Hon. Lee Metcalf (chairman of the subcommittee) presiding.

Present: Senators Metcalf and Percy.

Also present: Vic Reinemer, staff director; E. Winslow Turner, chief counsel; Gerald Sturges, professional staff member; Jeanne McNaughton, chief clerk; James George, minority, professional staff member.

Senator METCALF. The subcommitee will be in order.

Today is the third of 3 days of hearings by the Subcommittee on Reports, Accounting, and Management on two bills to amend the Federal Advisory Committee Act, S. 2947 and S. 3013.

Witnesses from the Department of Health, Education, and Welfare and Department of the Interior will be heard today.

Recently, I pointed out that it has never been formally determined whether the National Council on Educational Research is or is not subject to the Federal Advisory Committee Act. The Council, which is part of the National Institute of Education, was listed initially as a Federal Advisory Committee and then removed from the list.

I am pleased to announce that the Chairman of the National Council on Educational Research, John E. Corbally, has written to inform me that, through officials of the National Institute of Education, he has directed that the question of the Council's status under the act be properly presented to the Office of Management and Budget and the Department of Justice for a formal determination. Without objection, this letter will be placed in the record at this time, along with a prior letter to me from Dr. Corbally. [The information referred to follows:]

70-426 0-76-12

I have read your statement in the February 6, 1976 congressional Record discussing the relationship between the Federal Advisory Committee Act (FACA) and the National Council on Educational Research (NCER).

The Council was created by the Congress as you stated to "establish general policies for, and review the conduct of," the National Institute of Education (NIE) as well as to perform advisory roles. You also noted that the Director of NIE "shall perform such duties and exercise such powers" as the Council "may prescribe."

Thus the Council has substantial statutory responsibilities not characteristic of advisory committees. The Council's policy-making responsibilities have been the focus of our attention. Occasionally it is necessary for the Administration to provide information not available to the public. Without such information the Council cannot make informed and timely policies. This is especially true in the lengthy process of preparing the budget which is central to the effectiveness of general policy.

The Council's regular policies and practices are consistent with the spirit of the FACA and with the posture of the NCER as a body which is coordinate with the NIE Director and which initiates policy actions as well as reviews executive decisions. Our record of the past year for the announcement, conduct and reporting of meetings is a good one, although it is not unblemished, as you have noted. We certainly strive, in light of our responsibilities, to conduct our business in a public manner and have benefited from substantial public attendance and participation at our meetings.

In 1975 the Council held seven general meetings for a total of forty-four hours, of which twelve hours, or twenty-seven per cent, were in closed session (with seven of those hours during a two-day meeting in January, 1975). In each closed session either the FY 1976 or 1977 budget and program were considered as a matter for policy action.

During two of the seven meetings, the Council did not have any closed sessions. We have proceeded under guidelines established upon the recommendation of the NIE Director who was informed by consultation with authorities in the Department of Health, Education & Welfare. I understand that the Council is also acting in accord with the pertinent statements about the FACA issued by the Department of Justice and by the office of Management and Budget regarding policy-making bodies.