Ms. LYNCH. No, sir, and I would appreciate additional time to study it.

Mr. FINE. I read it just this morning, right before I came over, Mr. Chairman.

Senator METCALF. I wonder if you would, Mr. Fine or someone else, get together with our staff.

Mr. FINE. I had a call yesterday afternoon from your staff.

Senator METCALF. Would you provide for the record a response to Mr. Robertson's allegations?

Mr. FINE. We would be happy to do that.

Senator METCALF. That will be incorporated in the record. I hope you would be able to do it soon because I am informed that Congressman Moss is going to have some hearings on this same subject next Monday. Could we have it so it would be available to Congressman Moss by then?

Mr. FINE. We will do our best.

Senator METCALF. Thank you very much.

Ms. LYNCH. We will provide it to you, Mr. Chairman. [The information follows:]

RESPONSE TO TESTIMONY

In his prepared statement, Mr. Robertson objects generally to the use of exemption 5 of the Freedom of Information Act, 5 U.S.C. 552(b) (5), as a basis for closing advisory committee meetings. He asserts that Federal agencies, ignoring the literal application of exemption 5 to “inter-agency” and “intra-agency" matters, have improperly expanded the concept of "executive privilege" implicit in that exemption to encompass the activities of "outsiders who serve on advisory committees."

Noting that the rationale of using exemption 5-to promote candid and honest advice from advisory committee members-could swallow the rule that meetings be public, Mr. Robertson cites as his principal example the Food and Drug Administration's policy of allowing its advisory committees to hold closed deliberative sessions. He finds it particularly objectionable that FDA should follow this policy because the Agency was ordered to release transcripts of closed meetings of its advisory committee on over-the-counter antacid drugs by Judge Charles R. Richey, who, in Wolfe v. Wineberger, 403 F. Supp. 238 (D. D.C. 1975), made a number of statements indicating that exemption 5 is not available to advisory committees subject to the Federal Advisory Committee Act.

We share Mr. Robertson's concern that exemption 5, which was drafted as part of another statute with specific reference to the written records of Federal agencies, may not be a suitable mechanism for assuring candor and frankness in oral deliberations in appropriate circumstances while permitting maximum public accessibility to advisory committee meetings. We also believe it is appropriate for the Subcommittee to explore the question of whether provisions should be retained in the Federal Advisory Committee Act to protect the confidentiality of advisory committee deliberations. However, we respectfully disagree with Mr. Robertson's analysis of the legal considerations involved in interpreting the Federal Advisory Committee Act as it is now written. Moreover, he misconstrues the reasons behind FDA's response to the Wolfe decision.

1. Exemption 5 of the Freedom of Information Act is intended not primarily to reflect the doctrine of executive privilege, but to advance the more general public policy favoring "open, frank discussion between subordinate and chief concerning administrative action," EPA v. Mink, 410 U.S. 73, 86 (1973) (quoting Kaiser Alum. & Chem. Corp. v. United States, 157 F. Supp. 939, 946 (Ct. Cl. 1958), and to protect the integrity of the decisionmaking process. Montrose Chem. Corp. v. Train, 491 F. 2d 63, 68-70 (D.C. Cir. 1974). These policies are equally germane to the proper functioning of advisory committees and Federal agencies. Whether, in the case of advisory committees, they are outweighed by competing considerations favoring openness is a fair question. But that question is not answered by the Federal Advisory Committee Act, for section 10 (d) of that Act incorporates exemption 5 by reference as a basis for closing meetings.

2. Although advisory committees are not composed of full-time Government employees, they are not strangers to the agencies they advise. In Washington Research Project, Inc. v. HEW, 504 F. 2d 238 (D.C. Cir. 1974), the Court of Appeals held that advisory committee reports to the parent agency can be protected under exemption 5, a result that could not have been reached if advisory committees possess a status no different from that of the public.

3. Mr. Robertson's related point, that exemption 5 cannot be invoked by an advisory committee because it refers to intra- and interagency matters, requires this response. All nine exemptions to the Freedom of Information Act apply literally only to matters contained in written records of Federal agencies. If advisory committees cannot close meetings based on exemption 5 because it relates to "Agency" matters, by the same logic they cannot close meetings on the basis of any of the other exemptions, even to discuss national security matters (which, in Mr. Robertson's view, would be disclosed to "outsiders" if referred to an advisory committee). Moreover, the Court of Appeals has recognized in dictum that section 10 (d) of the Federal Advisory Committee Act makes exemption 5 available to close advisory committee meetings. Washington Research Project, Inc. v. HEW, supra at 248 n.15.

4. Mr. Robertson's fear that the exemption could swallow the rule is a valid one. We would welcome additional legislative guidance on how the legitimate need for candor in advisory committee deliberations on sensitive matters can be met without unduly restricting public access. But we do not believe that striking exemption 5 would be any better a solution for advisory committees than it would be for written Agency records. The wisest response would be a more particularized standard that takes into account the problems faced by agencies like the FDA, which often refers critical regulatory matters for preliminary evaluation to expert technical advisory committees. The public interest is often better served by maintaining a measure of confidentiality in such proceedi to avoid premature disclosure of the Agency's likely course of action, as wel is to promote uninhibited debate by experts who are often reluctant to express themselves unguardedly on issues whose resolution involves scientific judgment but will also have a significant impact on regulated firms.

5. The District Court in Wolfe v. Weinberger ordered FDA to release verbatim transcripts of its advisory committee on over-the-counter antacid drugs. The transcripts reflected meetings that, with a single exception, took place prior to the effective date (January 5, 1973) of the Federal Advisory Committee Act. The Court based its decision on the Freedom of Information Act; it specifically declined to grant relief to Dr. Wolfe by retroactive application of the Federal Advisory Committee Act. 403 F. Supp. at 243. Judge Richey made it clear, however, that were he required to decide whether exemption 5 is available to close advisory committee meetings, he would hold that it is not (except, possibly, when an internal agency document is under consideration by the committee). But despite Mr. Robertson's rendition, this was not a holding of the court, but an expression of its views.

Although the Department of Justice disagreed with the Wolfc decision and believed that Judge Richey's reading of the law was in error, it determined, after consulting with FDA, not to appeal. It arrived at this conclusion reluctantly. Because Judge Richey chose not to place directly in issue the key question of the availability of exemption 5 to close advisory committee meetings under the Federal Advisory Committee Act, obtaining a reversal, it was felt, would require only that the Court of Appeals hold that the meetings that generated the transcripts in issue were properly closed under Executive Order 11671, which preceded the Act. A reversal on those terms would have had no precedential value for interpreting the Federal Advisory Committee Act, and further litigation would thus have been required to settle the controversy over exemption 5. Moreover, this very issue is directly presented in the case of Aviation Consumer Action Project v. Washburn, No. 75–1086, which was argued in late January and is currently under advisement before the D.C. Circuit Court of Appeals.

Because the Wolfe decision did not squarely invalidate the Agency's interpretation of the Federal Advisory Committee Act (thus foreclosing meaningful appellate review of the Court's dicta), FDA concluded-with the concurrence of the Department of Justice-that it is not obligated to act as if the decision did. On December 15, 1975 (40 Fed. Reg. 58165), the FDA announced the availability of the transcripts that were the subject of Dr. Wolfe's suit, but explained that

the Agency would adhere to its policy respecting the availability of exemption 5 for the reasons noted.

6. Mr. Robertson's questions whether closing FDA advisory committee meetings is really necessary to permit the free exchange of members' views, avoid undue interference with committee operations, and permit the formulation of candid recommendations. The factors that led FDA to make this finding are set forth in FDA's letter to you of January 9, 1976. Suffice it to add that the use of advisory committees to assist the FDA in making regulatory decisions has expanded public access to the Agency's activities by providing a forum for public participation that would not be available if matters now committed to the advisory committee process were instead remitted to the exclusively internal deliberations of full-time Agency staff. That this forum is not as open as Mr. Robertson thinks it should be does not negate this fact. That the process FDA follows can be more open is a goal toward which we intend to work.

Mr. TURNER. Mr. Chairman, the staff has prepared some of its own questions, apart from the statement of Mr. Robertson. Perhaps if we could get together we could work together on this.

Senator METCALF. Could you give Mr. Fine your questions and the copy of Mr. Robertson's statement and try to get a response, so that if there are any further questions on the House hearing we will cooperate and try to work with them?

Ms. LYNCH. We will do that, Mr. Chairman.

Senator METCALF. I want to thank you for your appearance today. I know that it takes quite a while to get adjusted down in that large agency. I hope, along with Senator Percy and my other colleagues who have worked so hard on this legislation, that we can continue to work together and show further improvement in getting rid of some of these committees that really aren't productive, or which have a cost-benefit ratio, similar to what we apply to public construction, that isn't satisfactory. At the same time, we can try to get a broader base, more disclosure and more attendance, and then we will see where the legislation goes.

Ms. LYNCH. Thank you very much, Mr. Chairman. I want to reiterate to you the Secretary's desire to make our Department more open and certainly anything we can do to assist you in that effort we would be more than happy to do.

Senator METCALF. Thank you. We look forward to continue to work with you and your staff. My staff is available to you, too, for assistance and help at any time.

Thank you for coming.

Ms. LYNCH. Thank you, Mr. Chairman.

Senator METCALF. Mr. Fine, Mr. Turner, and Mr. Reinemer will be available when it is convenient to you.

Mr. FINE. Thank you, Mr. Chairman.

[Information referred to and supplied for the record follows:]

TESTIMONY OF RICHARD R. HITE, DEPUTY ASSISTANT SECRETARY, MANAGEMENT, DEPARTMENT OF THE INTERIOR; ACCOMPANIED BY MOODY R. TIDWELL, III, ASSOCIATE SOLICITOR, GENERAL LAW; AND TIMOTHY S. ELLIOTT, ASSISTANT SOLICITOR, GENERAL LEGAL SERVICES

Senator METCALF. We are pleased to have Hon. Richard Hite, the Deputy Assistant Secretary for Management of the Department of Interior.

I am glad to have an Interior witness over here on my Government Operations Committee. I have some of your agents so many times over on the Interior Committee, on which I also serve. We are pleased to have you here.

You have a statement, Mr. Secretary. If you will, identify your colleagues and go right ahead.

Mr. HITE. Thank you, Mr. Chairman. It is a pleasure to be here. With me at the table on my right our Associate Solicitor for General Law, Mr. Moody Tidwell; and on my left, Assistant Solicitor for General Law, Timothy Elliott.

Mr. Chairman, I have a prepared statement. At your pleasure, I can read it in the record or simply summarize it for you, sir.

Senator METCALF. It is your decision. You are here and you may testify in any way you wish. If you want to summarize the statement, it will be put in the record as if read at the conclusion of your testimony.

Mr. HITE. Thank you, sir. I will briefly summarize it.

In our statement, Mr. Chairman, we enumerated the number of advisory committees that we have active now: 111. This is down from a total of 132 committees in 1973 when Public Law 92-463 was enacted.

This reduction is attributable to the enactment of the FACA and a review of the committee system throughout the Department, particularly in the Bureau of Land Management.

We have dwelled in the prepared statement at considerable length on the BLM revampment of its advisory system, sir. We did emphasize that, in addition to the impetus supplied by the enactment of public law, this revampment was attributable to the Bureau's motive to reconstruct the committees, pursuant to their multiple use concept of land, which has evolved over the past several years.

With respect to the review of S. 2947 itself, we basically recommended that it not be enacted, Mr. Chairman, as presently presented. We have five particular points. First, we have observed that enforcement of the basic Public Law 92-463 has increased costs to the Department, at least indirectly in terms of man-hours necessary for that enforcement.

More specifically, we are concerned about the amendment to section 5(b) of the basic act which would provide for public solicitation and one-third representation from the general public on our advisory boards.

I would like to emphasize, sir, that most of our boards are functioning in very specific disciplines and we feel that our efforts are most positive now to provide adequate counterbalance and representation on these boards.

We also have a reservation, Senator Metcalf, on the amendment to section 10, which sets up a rather involved process to permit the inhibition of closed meetings.

The Department had no closed meetings in 1975. We do not envision a great number of closed meetings, but we would suggest to the committee that that option should be preserved.

Our final reservation pertains to S. 3013, sir, in Senator Percy's second amendment, which would institute a rather complex tracking

system with respect whether the recommendations of the various committees were affirmatively regarded or rejected.

In our instance at least, Mr. Chairman, the tracking system would be difficult to enforce inasmuch as with the decision processes involved, it may take a number of years to come to fruition.

It is very hard to say that advisory board recommendations were voted up or down specifically by the Secretary.

Those are the major points in our prepared statement, Mr. Chairman. Of course we would be pleased to answer any questions that you have.

Senator METCALF. Thank you very much. I want to compliment the Department of Interior for having no closed advisory committee meetings last year.

However, I want to remind you that one of the reasons why some of those committee meetings were not closed is because the committees didn't meet. One such committee is the Emergency Petroleum Supply Committee. Another is the Foreign Petroleum Supply Committee.

They not only didn't meet last year, but didn't meet the preceding year.

When a committee doesn't meet for 2 years or even 1 year, isn't it about time to eliminate it, to abolish it?

Mr. HITE. We agree with that, Mr. Chairman. These two committees that you specifically refer to were created in support of functions which have since been spun off from the Department and are under the purview of the FEA.

You are quite correct, they have not met for 2 years. It is our plan to either terminate these committees before their statutory termination date or phase them out at that time.

The decision hasn't been made, but with this stimulus I will report back to the Secretary and see what action can be taken.

I will submit, sir, that the committees which don't meet-and we have a few more that meet very seldom, one that particularly came to mind in the Park Service, the Preservation of Archeological Artifacts Board-do not cost the taxpayer when they are not meeting.

In some cases the mission is such that they would only meet on call of the Secretary or the Bureau Chief involved.

Secretary METCALF. I understand that it is well sometimes to have a standby committee. I suppose a year or so could go by without such a standby committee meeting. It would seem to me that you would at least reappraise and reevaluate the continued necessity of having that committee on paper and then eliminate it, if possible. Mr. HITE. We agree with that, Mr. Chairman.

Senator METCALF. Another suggestion I have and I still compliment you on the things you have done in BLM-is based on the fact that some of your committees haven't the balance which the act requires. The Foreign Petroleum Supply Committee that didn't meet, the National Petroleum Council, and so forth, consist almost entirely of representatives of the large oil companies.