We are very concerned about the requirements that would be imposed on agencies in the area of closed sessions. while we recognized that meetings should be open, there are valid reasons, based on the FOIA exemptions, for closing meetings. The thirty-day advance notice to be published in the Federal Register could cause administrative burdensome problems in setting up such meetings because of the lead time that would be required to meet such a deadline. The appeal procedure for a closed session determination to the agency head, for which there is provision in the bill, would create enormous problems in scheduling of meetings if an application for review came in less than 48 hours before the scheduled meeting. Committee members come from all parts of the country, are leaders in their professions and cannot be expected to change their schedules on a moments notice. It is questionable that NASA could obtain the necessary services of qualified individuals for its committees under such circumstances. Recourse to the courts would further exacerbate the situation as to delaying meetings and the real possibility of affecting mission deadlines for experiments to be integrated into and flown on satellites. Additionally, the possibility of prosecution of a committee member by the Department of Justice, for what offense we are not sure, and the power of the court to punish for contempt an agency employee or committee member could have a serious effect on the staffing of committees and preclude the agency from obtaining the expert advice it requires.
The requirement for reporting private source funding is ambiguous as written since a committee member's salary from his or her university or company could be considered something of value given for support of the committee. Under such an interpretation, every committee would be supported by private source funding.
For the above reasons, NASA opposes enactment of S. 2947. If S. 2947 is enacted, it is doubtful that NASA could continue to utilize advisory committees and highly doubtful if NASA did continue to have such committees, that qualified people could be found willing to serve on the committees. Without such committees composed of qualified individuals, NASA would be seriously hampered in obtaining the scientific and technical advice necessary for accomplishment of its mission.
The Office of Management and Budget has advised that, from the standpoint of the Administration's program, it has no objection to the submission of this report to the Congress.
Jospel P. Allen
Joseph P. Allen
Assistant Administrator for Legislative Affairs
This is in response to your letter of February 10, 1976, requesting the views and comments of the National Foundation on the Arts and the Humanities on S. 2947, a bill to amend the Federal Advisory Committee Act, and on two amendments to the bill introduced by Senator Percy. The National Endowment for the Arts and the National Endowment for the Humanities, the two agencies that constitute the National Foundation on the Arts and the Humanities, will be responding separately to your inquiry due to administrative differences in the operation of their respective advisory committees.
The National Endowment for the Arts has serious reservations regarding the desirability of this legislation. The Endowment believes that certain provisions of S. 2947 would unjustifiably increase agency administrative expenses, discourage members of the nation's artistic and cultural community from participation in the Endowment's evaluative process in the making of grants, and seriously impair the Endowment's ability efficiently to carry out its legislative mandate. Consequently, the Endowment opposes, as contrary to the public interest, the following provisions of S. 2947.
Section 9 of S. 2947 would amend section 10 of the
Federal Advisory Committee Act by adding to subsection
(c) a requirement that a complete audio or audio and
visual recording be made of every closed advisory
committee meeting. This recording would have to be
deposited with the Librarian of Congress within
twenty-four hours after the closed meeting has been
The Honorable Abraham Ribicoff
completed. At the request of any members of the
advisory committee the recording may be reduced to
typescript. The Endowment held 85 advisory committee
meetings in calendar year 1975. 35 of these meetings
considered nothing but applications for support and
were closed to the general public, under Freedom
of Information and Privacy Act provisions. The
cost of an audio recording of each of these meetings
is estimated by our administrative staff at $58.00.
Further, the cost of transcribing the tapes for an
8 hour meeting is estimated at $540.00. It is
unlikely that any use would ever be made of these
recordings since the decisions of each panel are
readily available in the notes kept by our staff.
Also, it appears that the Library of Congress would
probably be inundated with such tape recordings of
advisory committee meetings of this and other agencies.
Section 9 would amend section 10 of the Federal
Advisory Committee Act by eliminating section 552 (b)
(5) of the Freedom of Information Act as a legal
justification for closing advisory committee meetings.
The Federal Advisory Committee Act as presently
written mandates that each advisory committee be
open to the public unless a determination is made
that the meeting is concerned with matters listed
in section 552 (b) of Title 5, i.e., the nine exemp-
tions of the Freedom of Information Act. The (b) (5)
exemption excepts from mandatory disclosure
inter-agency or intra-agency memoranda or letters
which would not be available by law to a party other
than an agency in litigation with an agency. This
exemption, according to the House Report accompanying
the Freedom of Information Act (H.R. Rep. No. 1497,
89th Cong., 2d Sess. (1966)), was intended to ensure
the continuance of full and frank exchange of opinions
among agency personnel. It was contended that "the
exchange of ideas would not be completely frank if
agency personnel were forced to operate in a fishbowl."
Senator Metcalf, in introducing S. 2947, stated that
recent district court decisions have held exemption 5
to be inherently inapplicable to advisory committees.
The most recent of these decisions, Wolfe v. Weinberger,
403 F. Supp. 238 (1975), does conclude that exemption
5 is unavailable as a justification for withholding
The Honorable Abraham Ribicoff
transcripts of all meetings of a specific advisory
committee where the transcripts formed no part of
"the record transmitted to, or read or relied upon
by the Commissioner of the agency to which the
committee reports." However, the decision in Wolfe
clearly states that the same conclusion would not
be reached if the documents involved were relied
upon by the agency to which the advisory committee
reports in the course of the agency's decision
making process. Consequently, it is the Endowment's
opinion that the courts do recognize the validity
of exemption (b) (5) of the Freedom of Information
Act for closing advisory committee meetings when the
matters under discussion, if reduced to writing,
would constitute an integral part of the agency's
deliberative process. Further, the Endowment be-
lieves that the policy considerations behind
section (b) (5) of the Freedom of Information Act
are consistent with considerations involved in
maintaining the confidentiality of certain agency
business conducted during advisory committee
meetings.
The Endowment's panel system is an integral part of
the agency's grant-making function. Artists, actors,
writers, arts administrators and other members of the
cultural community with first-hand knowledge of their
respective fields serve as Endowment panel members.
Panel meetings involve discussions of agency staff
memoranda, applications, and staff recommendations
with respect to action on such applications. Indis-
pensable to the successful operation and continued
existence of this process is the ability of the ex-
perts serving on these committees to candidly discuss
and evaluate their peers. These panel members have
unanimously and unequivocally indicated that they would
not serve as expert consultants if meetings involving
such peer group review of grant applications were
open to the public. This would effectively destroy
public participation in the Endowment's grant review
process and would leave grant award decisions solely
in the hands of Federal administrative personnel.
Also, it should be noted that confidentiality in the
evaluative process is desirable to most grant appli-
cants who, in case of rejection, may not wish to
publicize the fact that they have applied for an
Endowment grant. Therefore, it is the Endowment's
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