   Applicability of the Federal Advisory Committee Act to the
           National Endowment for the Humanities

T h e F ed eral A d v iso ry C o m m ittee A ct (F A C A ) requires (hat th e nam es o f m em bers o f
   th e H u m an ities Panel o f the N ational E n d o w m e n t fo r th e H um anities (N E H ) be m ade
   av ailab le to th e pub lic by su b g ro u p , but d o es not req u ire th at such d isc lo su re o c c u r
   until a fter th e p a rtic u la r su b g ro u p ’s w o rk has been co m p leted .

T h e p riv acy ex em p tio n to th e o p en m eetin g req u irem en t o f the G o v e rn m e n t in the
   S unshine A ct, m ad e ap p licab le to federal a d v iso ry co m m ittees by th e 1976 am en d m en ts
   to F A C A , m ay perm it closing som e p o rtio n s o f m eetings o f su b g ro u p s o f th e H u m a n ­
   ities Panel at w h ich in d ividual g ran t ap p licatio n s are discussed; h o w e v e r, th e N E H has
   th e resp onsibility to d eterm in e in ad v a n c e w h a t p o rtio n s o f su b g ro u p m eetings will not
   fall w ith in an ex em p tio n to F A C A ’s o p en n ess req u irem en t, and to assure th at th o se
   p o rtio n s are clo sed to th e public.

                                                                                       August 18, 1980

   MEMORANDUM OPINION FOR TH E G E N ER A L COUNSEL,
     NA TIONAL EN DOW M EN T FOR TH E HUM ANITIES

   This responds to your request for our advice regarding the Federal
Advisory Committee Act (FA C A ).1 This memorandum focuses on two
issues: first, whether the FACA requires that the names of members of
National Endowment for the Humanities (NEH) advisory committees
and their subgroups be made available to the public, and if so, at what
time; and second, whether the meetings of such committees could, in
appropriate circumstances, be closed to the public in order to protect
the privacy interests of applicants for financial assistance. We will
discuss each issue in turn after setting forth the relevant facts.

                                             I. Background

  The NEH has two advisory committees. The first is the National
Council on the Humanities, created pursuant to § 8 of the National
Foundation on the Arts and Humanities Act, Pub. L. No. 89-209, 79
Stat. 845 (1965), as codified at 20 U.S.C. §957. The National Council
advises the chairman regarding the Endowment’s policies and proce­
dures and regarding applications for financial assistance. The second
advisory committee is the Humanities Panel, created by NEH and
composed of hundreds of scholars and experts in various fields who

   1    Pub. L. No. 92-463, 86 Stat. 770 (1972), as am ended by Pub. L. No. 94-409, § 5(c), 90 Stat. 1247
(1976). T he FA C A is codified in 5 U.S.C. App.

                                                     743
meet in subgroups or panels to review and make recommendations
regarding applications for financial assistance.2
   Our understanding is that the NEH publishes the names of all Hu­
manities Panel members without differentiating among the various
subgroups. Also, we understand that when applicants seek information
about their applications, the NEH may release to them the names of
members of the reviewing panel, but only after the chairman has taken
final action on applications considered by the panel.
   We understand further that, as a rule, the NEH opens to the public
those portions of National Council meetings at which the NEH ’s gen­
eral policies, procedures, and practices are discussed. Portions of meet­
ings of the National Council and the subgroups of the Humanities Panel
that review applications for financial assistance, we understand, gener­
ally are not open to the public.
                                             II. Discussion

1. Membership o f Advisory Committees
   You have asked us whether the N E H ’s policies regarding disclosure
o f the names of members of the Humanities Panel are in accord with
the FACA. This raises two subsidiary issues. First, does the FACA
require the NEH to make available to the public not only the names of
all of the members of the Humanities Panel, but also the names of the
members of specific subgroups of the Panel that consider applications
for financial assistance? Second, if there is any such requirement, at
what point in the process should the NEH make these names public—at
once, or after the subgroups have completed their work?
   Although the FACA does not address these issues in specific terms,
answers may be inferred from its associated requirements. First, the
FA CA does require the President annually to report to Congress on the
activities and status of advisory committees. Among the items to be
included in such reports is a list of “the names and occupations of . . .
current members” of advisory committees. §6(c). Although there is no
similar requirement that the public be informed of the names of mem­
bers of advisory committees, because Congress decreed that one of the
purposes of the FA CA was that “the Congress and the public should be
kept informed with respect to the . . . membership . . . of advisory
committees,” § 2(b)(5) (emphasis added), the Act, in our view, contem­
plates that the names of members of advisory committees should also be
made available to the public.3

    2 T h e w ord “ panel” w ithout capitalization refers to a subgroup o f the larger Hum anities Panel. T he
H um anities Panel com prises all w h o may potentially serve on subgroups o r panels. T he Humanities
Panel num bers in the hundreds, w hile individual panels are com posed o f a few chosen experts.
    3 T his inference is buttressed by the fact that the F A C A requires that the m em bership o f advisory
com m ittees be “balanced” in term s o f the points o f view represented on them. See §§5(bX2) and (c).
T h e re w ould be no w ay for the public to m onitor agency com pliance w ith this requirem ent if the
public w ere not able to know the identity o f the m em bership o f advisory com m ittees.

                                                    744
    Thus, the issue arises whether the NEH ’s policy of disclosing pub­
 licly the names of all members of the Humanities Panel is in compliance
 with the Act. Although there is no provision specifically rendering
 invalid such a practice, we believe that it would be more in keeping
 with the provisions and spirit of the FACA for the NEH to make
 available to the public the names of members of subgroups of the
 Humanities Panel as well as the names of members of the Humanities
 Panel as a whole. The reason for this is that the FACA expressly
defines an “advisory committee” to include not only any committee,
board, commission, council, conference, panel, task force, or other
similar group, but also “any subcommittee or other subgroup thereof
 . . .”, § 3(2), that otherwise meets the tests of an advisory body. Ac­
cordingly, subgroups of the Humanities Panel are advisory committees
in their own right. For the public to be fully informed about the
membership of each NEH advisory committee, therefore, the public
should have access to information about the membership not only of
the Humanities Panel as a whole, but also of each of its subgroups that
functions independently as an advisory committee.4
    The second question is whether the FACA requires that such disclo­
sure occur at once—or at least as soon as or shortly after the subgroups
of the Humanities Panel are constituted—or whether such disclosure
may occur later in the process after the subgroups have completed their
work and agency action on the applications has been taken. We find no
requirements in the FACA that the NEH must make such disclosure at
once or at any time before the subgroups have completed their work
and the agency has taken action on the applications. Had Congress
intended to impose such a requirement, it could easily have done so,
such as in the provisions detailing the contents of charters to be filed
before advisory committees may be established, see § 9(c), or of the
notices of advisory committee meetings, see § 10(a). These provisions are
silent on the subject. Similarly, OMB Circular A-63 (Mar. 27, 1974), as
amended, which implements the FACA and provides more detailed
procedural guidance than the Act itself, does not require the NEH to
disclose the membership of its Humanities Panel subgroups at any
particular time. Indeed, the only provision of the FACA that speaks
specifically about identifying the members of advisory committees
(aside from the one discussed above dealing with annual reports to
Congress) concerns the required contents of the minutes of advisory

    4 W ithout addressing in any detail the various w ays in w hich such inform ation could be made
available to the public, we should note that such m ethods m ight include placing lists o f the m em bers
o f subgroups o f the Hum anities Panel in a file open to the public, o r including such inform ation in
reports about the activities o f N E H advisory committees. C f § 8.b(S) o f the proposed join t D e p art­
ment o f Justice-O M B guidelines on the FA C A , published in 1973 at 38 Fed. Reg. 2308 (Jan. 23, 1973)
(calling on agencies annually to prepare a report describing the mem bership, functions, and actions o f
its advisory comm ittees; this proposed o rd e r was superseded by O M B C ircular A -63, w hich contains
no such specific requirem ent that advisory com m ittee m em bership be annually reported).


                                                 745
committee meetings,5 which are, of their very nature, only made avail­
able to the public, if at all, after the work of committees has been
completed. Since both situations in which Congress specifically requires
disclosure of the names of committee members, or at least of those
present at meetings, are ones that would lead to public disclosure, if
ever, only after advisory committee meetings have been completed, we
consider that the Act cannot fairly be read to impose any more strin­
gent requirement in this case.
2. Closing Advisory Committee Meetings

   You have asked whether the NEH could invoke, as the basis for
closing meetings at which applications for financial assistance are re­
viewed, the sixth of the applicable Government in the Sunshine Act
exemptions from the open meeting requirement. See 5 U.S.C.
§ 552b(c)(6). The exemption pertains to information likely to:
          . . . disclose information of a personal nature where dis­
          closure would constitute a clearly unwarranted invasion
          of personal privacy . . . .
 With the caveats noted below, our answer is yes.6
    As a preliminary matter, the FA CA ’s legislative history makes plain
 that the A ct’s “standard of openness . . . is to be liberally construed.”
 S. Rep. No. 1098, 92d Cong., 2d Sess. 14 (1972); see also H.R. Rep. No.
 1017, 92d Cong., 2d Sess. (1972); H.R. Conf. Rep. No. 1403, 92d Cong.,
 2d Sess. (1972). Courts have underscored that “. . . when a federal
executive official utilizes an advisory committee to assist him in dis­
charging his responsibilities, in most instances he must do so openly and
 publicly.” Center for Auto Safety v. Cox, 580 F. 2d 689, 694 (D.C. Cir.
 1978); see also Food Chemical News, Inc. v. Davis, 378 F. Supp. 1048,
 1051 (D.D.C. 1974). Further, one of the main reasons for the 1976
amendment of the FA CA making the Sunshine A ct’s (instead of the
FO IA ’s) exemptions from the open-meeting requirement applicable to
advisory committees was to eliminate FOIA exemption (b)(5) 7 as a
basis for closing advisory committee meetings. As the conference report
underscored, the amendment was intended “. . . to end agency reli­
ance upon the ‘full and frank’ discussion rationale for closing advisory
committee meetings.” H.R. Rep. No. 1441, 94th Cong., 2d Sess. 26
(1976). Thus, to invoke a Sunshine Act exemption, a more specific
justification must be found to exist than merely a generalized need to
protect candor in advisory committee deliberations.

   i See § 10(c) o f the F A C A , w hich requires that advisory com m ittee m inutes include, inter alia, “a
reco rd o f the persons present . . .
   6 W e d o not discuss here the procedural steps that must be taken before the N E H may close an
advisory co m m ittee meeting. See O M B C ircu lar A -63.
   7 T hat exem ption pertains to “ inter-agency o r intra-agency m em orandum s o r letters w hich w ould
not be available by law to a p arty o th e r than an agency in litigation w ith the agency.”

                                                    746
   The privacy exemption to the open meeting requirement calls for an
assessment whether the topic of discussion is of a “personal” or private
nature and, second, whether in the particular case the topic is so
personal that its disclosure would be a “clearly unwarranted” invasion
of an individual’s privacy interests. The latter determination requires a
weighing of the interests in privacy against the interests in disclosure.
See H.R. Rep. No. 880, Pt. I, 94th Cong., 2d Sess. 11 (1976); see also
Note, The Government in the Sunshine Act—an Overview, 1977 Duke L.J.
565, 577-78.8
   The subjects to be discussed with respect to applications for financial
assistance could well include, for example, an applicant’s abilities in his
field, his reputation among his colleagues, and his professional back­
ground and performance. These topics would certainly appear to in­
volve the type of personal information in which an applicant has a
privacy interest. Support for that view derives from S. Rep. No. 354,
94th Cong., 1st Sess. 21 (1975), which states that the forerunner to this
exemption “may” apply to “a discussion of an individual’s drinking
habits or health, or review o f a grant application which requires assessing
an individual's professional competence” (emphasis added). The House
Government Operations Committee report notes that the exemption
would apply, for instance, to discussions of an individual’s health or
alleged drinking habits. See H.R. Rep. No. 880, Pt. I, 94th Cong., 2d
Sess. 11 (1976). It seems plain that just as discussing a person’s health
could reveal highly personal matters as to which an individual has a
strong privacy interest, so too could discussing a scholar’s competence,
a researcher’s reputation, or an applicant’s ability to carry through a
project that he starts—which, again, are precisely the types of matters
that may be crucial in reviewing applications for financial assistance.
C f Washington Research Project, Inc. v. Dept, o f HEW, 366 F. Supp.
929, 937 (D.D.C. 1973), a ffd on other grounds, 504 F.2d 238 (D.C. Cir.
1974), cert, denied , 421 U.S. 963 (1975).
   But the fact that an applicant has a legitimate privacy interest in a
closed committee meeting does not end the inquiry. The agency must
also determine that the privacy interest is not de minimis and is not
outweighed by countervailing interests in openness.9

   8 T he balancing analysis required under the Sunshine A ct's privacy exem ption, S U.S.C.
§ 552b(c)(6), is essentially similar to that .required under the privacy exem ption o f the Freedom of
inform ation A ct, S U.S.C. § 552(b)(6) except that the latter, dealing w ith records involves the
additional issue w h eth er a docum ent is the type o f ‘Tile” covered by the exem ption. See generally S.
Rep. No. 354, 94th Cong., 1st Sess. 3 (1975); H .R. Rep. No. 880, Pt. I, 94th C ong., 2d Sess. 15 (1976);
M arblestone, The Relationship Between the Government in the Sunshine Act and the Federal Advisory
Committee Act, 36 Fed. Bar J. 65, 67 and n. 16 (1977).
   9 T h e legislative history o f the am endm ent o f the FA C A making the Sunshine A ct's exem ptions
applicable to advisory com m ittee meetings indicates C ongress’ acceptance o f the principle that “ peer
review ” processes may have to be closed to protect legitim ate privacy interests, although the com pet­
ing interest in openness must be w eighed against the privacy interests. See H .R . Conf. Rep. No. 1441,
94th Cong., 2d Sess. 26 (1976): “T h e conferees . . . are concerned about the possible effect o f this
am endm ent upon the peer review and clinical trial prelim inary review systems of the N ational
                                              Continued



                                                  747
   In the present context, for instance, it might be known in advance
that an NEH advisory committee will consider as factors in the award
of assistance such subjects as the geographical location of academic
institutions with which applicants are affiliated. If this were known, the
agency would be under an obligation to consider whether such a
discussion could be isolated from other subjects of a more personal
nature. If it could be, the NEH should open to the public such portions
of committee deliberations that do not seriously implicate applicants’
interests in protecting from public view intimate facts about themselves.
Opening such portions of committee meetings would serve the same
important aim of allowing the public to be informed about criteria for
awarding financial assistance as is served by opening the National
Council’s policy discussions, which, we understand, already is done.
There is no more justification for closing to the public such discussions
when they occur in subgroups of the Humanities Panel than there is
when they occur in the National Council.
   At the same time, we recognize that in the advisory committee
context, and particularly when dealing with the review of individuals’
applications for financial assistance, it may be difficult if not impossible
to segregate in advance all of the policy-oriented, nonprivate topics
from the particularized, highly private subjects. This may be so simply
because, in a meeting, tight controls on the development of discussion
are difficult to impose. For instance, in policy discussions that are open
to the public, committee members may wish on occasion to comment
on highly private matters pertaining to applicants. Conversely, in
nonpublic discussions of applications subject to the privacy exemption,
members may raise topics implicating no real privacy concerns. While
these observations militate against an inflexible or impractical rule in
this context, it should nonetheless be borne in mind that under the
FACA, the NEH has the responsibility to seek in advance to determine
what portions of advisory committee meetings will not fall within the
specified exemptions from the openness requirement, and to ensure that
those portions are not closed to the public.

                                                                 L   eon   U   lm an

                                                  Deputy Assistant Attorney General
                                                      Office o f Legal Counsel

Institutes o f Health. T he conferees thus wish to state as clearly as possible that personal data, such as
individual medical inform ation, is especially sensitive and should be given appropriate protection to
prevent clearly unw arranted invasions o f individual privacy. W hile the conferees are sym pathetic to
the concerns expressed by N IH . . . , the conferees are equally sym pathetic to concerns expressed by
citizens' groups that im portant fiscal and health-related inform ation not be unnecessarily w ithheld from
the public.” See also H .R. Rep. No. 880, Pt. II, 94th Cong., 2d Sess. 11 (1976); N ote, Government in the
Sunshine Act: Opening Federal Agency Meetings. 26 A m .U .L .R ev. 154, 182-83 (1976). Cf. Ditlow v.
Shultz, 517 F.2d 166, 169-170 (D .C . Cir. 1975) (speaking o f the privacy interests protected by the
F O IA , w hich include, inter alia, m atters o f reputation, and w hich must be balanced against interests in
disclosure).

                                                    748
