                                                                                   May 21, 1979


79-32        MEMORANDUM OPINION FOR THE SENIOR
             ASSOCIATE COUNSEL TO THE PRESIDENT

             Three Mile Island Commission—Closed Meetings—
             Federal Advisory Committee Act (5 U.S.C.
             App.)—Government in the Sunshine Act (5 U.S.C.
             § 552b)


   This m em orandum is to confirm our advice that legislation that would
grant the President’s Commission on the Accident at Three Mile Island the
power to issue subpoenas is sufficient also to allow the closing o f its
meetings under certain circumstances. We have reviewed the statement by
Senator Kennedy made on the Senate floor last week and, assuming that
no contrary indications arise when the House considers the Three Mile
Island subpoena legislation, we conclude that it is sufficient to make
reasonably clear that exemption (10) o f the Government in the Sunshine
A ct’s exemptions, 5 U .S.C . § 552b(c)(10), will be available when this
Commission is to discuss its issuance o f subpoenas.* O ur reasons for so
concluding are as follows.


         I. Applicability o f the Sunshine Act Exemptions in General

  The Commission is an advisory committee subject to the provisions of
the Federal Advisory Committee Act (FACA), 5 U .S.C . App. I (1979
Supp.), P ub. L. N o. 92-463. The principal purpose of that Act is to pro­
vide a unified set o f procedures for advisory committees to agencies


 . *Editor’s Note: This m em orandum was written before the House o f Representatives con­
sidered the resolution that ultimately became the Three Mile Island Commission subpoena
legislation, P u b . L. N o. 96-12, 96th C ong., 1st sess. (1979). T he House debate, which oc­
curred on the date this m em orandum was transm itted (May 21, 1979), did not indicate a con­
gressional intent contrary to that indicated by Senator Kennedy’s remarks during the Senate
debate. See 125 C o n g re s s io n a l R e c o rd H . 3480-81 (daily ed., May 21, 1979). The resolu­
tion became law on May 23, 1979.

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    and to the President. As the A ct’s legislative history makes clear, the open­
    ness provisions o f the FACA are to be liberally construed. See 5 U .S.C .
    App. I § 10(a)(1).' However, in the event that the President or his
    designee,2 or the head o f the agency to which an advisory committee
    reports, determines that one o f the Sunshine Act exemptions applies, then
    the portion o f a meeting to which it pertains may be closed so long as the
    required procedures are followed. See § 10(d) o f the FACA; see also O f­
    fice o f Management and Budget Circular No. A-63.

                     II. The Difficulty with Utilizing Exemption (10)
       The problem with utilizing exemption (10) o f the Sunshine Act is that it
    refers to “ the agency’s” issuance o f a subpoena as the predicate for its
    use. This suggests the following difficulty: for exemption (10) to be em­
    ployed, it would have to be determined that “ the agency’s” action is to be
    discussed at a committee meeting. As a rule, an advisory committee is not
    itself an “ agency.” 3 Therefore, in the normal situation an advisory com ­
    mittee would have to show that some other entity, denom inated an “ agen­
    cy” for purposes o f the exemption, is to issue a subpoena before exemp­
    tion (10) may be applicable. In the present case, that reasoning would
    mean that the commission’s own issuance o f a subpoena, all other things
    being equal, would not suffice as the basis for closing a meeting o f the
    Commission.
       It might be said that the purpose o f Congress in providing an exemption
    for the closing o f a meeting to discuss the issuance o f a subpoena would be
    undermined by concluding that, when the subpoena is not issued by an en­
    tity which is clearly an “ agency” in law, such entity cannot seek to rely on
    exemption (10). We recommended the inclusion o f a specific provision in
    the subpoena legislation to clarify that ambiguity.


       1 See S. Rept. 92-1098, 92d C ong., 2d sess. at 14: “ * * * the intention o f this legislation
    [the FACA] is that the standard o f openness and public inspection o f advisory com m ittee
    records is to be liberally construed.”
       1 Section 10(d) o f the FACA provides that “ the President, or the head o f the agency to
    which the advisory comm ittee reports,” is to determine that a portion o f a meeting may be
    closed in accordance with one o f the Sunshine Act exemptions. In view o f norm al subdelega­
    tion doctrine, the President may delegate his express authority pursuant to the FA CA to “ the
    head o f any departm ent or agency in the executive branch, or any official thereof who is re­
    quired to be appointed by and with the advice and consent o f the Senate * *           3 U .S.C .
    § 301. In § 1-306 o f Exec. O rder No. 12130, the President delegated his functions under the
    FACA, except that o f reporting annually to Congress and to the A dm inistrator o f General
    Services.
       1 The FACA provides that “ agency” has the same meaning as it does in the Adm inistrative
    Procedure Act. Section 551(1) o f Title 5, United States Code, defines an “ agency” as “ each
    authority o f the government o f the United States whether or not it is within or subject to
    review by another agency.” This definition has been judicially construed to require that an
    executive branch entity, to be deemed an “ agency,” have “ substantial independent authority
    in the exercise o f specific functions,” Soucie v. David, 448 F. (2d) 1067, 1073 (D .C . Cir.
    1971), or the “ authority in law to make decisions,” Washington Research Project, Inc. v.
    HEW , 504 F. (2d) 238, 248 (D .C . Cir. 1974). Such tests cannot normally be met by advisory
i   committees, whose chief function is to make recom m endations and not to exercise independ­
    ent authority. See, Wolfe v. Weinberger, 403 F. Supp. 238, 241 (D .D .C . 1975); Gates v.
    Schlesinger, 366 F. Supp. 797, 799 (D .D .C . 1973).

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                  III. Clarification o f the Commission’s Status
    The following was stated on the floor o f the Senate by Senator Ken­
 nedy, the sponsor o f the subpoena legislation.
      Mr. President, originally, the resolution [calling for subpoena
      power for the Commission] proposed by the administration con­
      tained a provision specifying that the commission could close its
      meetings under certain circumstances. We have deleted that pro­
      vision because we believe that the Commission already has the
      power to close its meetings under those circumstances pursuant
      to the Federal Advisory Committee Act if the President or
      agency head approves. We believe that if meetings are to be
      closed in connection with this vital m atter o f public concern it
      should only be done with the approval o f the President or rele­
      vant agency head—and that the Commission should not have the
      power to close its meetings on its own. [125 C o n g r e s s i o n a l
      R e c o r d § 6185 (daily ed., May 17, 1979.)]
The reference to the legislation proposed by the Administration makes plain
that the exemption which the Adm inistration sought to make applicable to
the commission—in particular, exemption (10)—should be considered
already available. Specifically, the Adm inistration’s proposal provided that
the term “ agency” for purposes o f the Sunshine Act exemptions “ shall be
construed to apply to this Commission.” Accordingly, the evident meaning
o f Senator Kennedy’s comment is that what the Administration had sought
to make clear already exists with respect to the Commission—that is,
that this Commission can in appropriate circumstances be considered an
“ agency” for the purpose o f exemption (10).4
   An argument that Senator Kennedy’s statement is not sufficient to
establish that the Commission may utilize exemption (10) in particular—
assuming no contrary indication by the House when it considers the legis­
lation—would appear specious. It would be inappropriate to rely on the
general proposition that, normally, advisory committees are not “ agen­
cies,” because this Commission is in a special situation, given the legisla­
tive history discussed above. Also, in light o f that clarification, to accept
the contention that the Commission’s meetings cannot be closed on the
basis o f exemption (10) is to frustrate the apparent aim o f Congress in
granting the commission subpoena power: namely, to make certain that
the commission can conduct a thorough investigation, which at times may
require closure o f certain portions o f meetings to consider the use o f sub­
poena power.
   The legislative history o f the Sunshine Act is not to the contrary. The
provision making Sunshine Act exemptions applicable to advisory


   4 We should add that Senator Kennedy’s reference to the determ ination by the President,
or agency head, o f the grounds for closing a Commission meeting simply restates the pro­
vision o f § 10(d) o f the FACA.

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committees, which arose in a floor amendm ent, is based on the premise
that the FACA, which deals with meetings, should have a set o f exemp­
tions that also refer to meetings, instead o f ones that refer to docum ents.
See 122 C o n g r e s s io n a l R e c o r d H. 24208-09, 94th Cong., 2d sess.
(1976). Also, as the House conference report makes plain, that provision
was intended to disapprove the use o f exemption (5) o f the Freedom o f In­
formation Act, 5 U.S.C. § 552(b)(5), which deals with internal deliberative
memoranda. As was said, “ [t]he chief concern in this regard has been ap­
plication o f exemption (5) a provision intended to protect the confiden­
tiality o f purely internal governmental deliberations, as a basis for closing
discussions with and among outside advisers.” H. Conf. Rept. 1441, 94th
Cong., 2d sess. 26 (1976). [Emphasis, in original.] But the desire to end
reliance on such a relatively broad exemption designed to protect “ full and
frank” discussions in general does not militate against the use, in present
circumstances, o f a much more precise exemption designed to protect
frankness in the deliberations o f an entity with subpoena power—particu­
larly when the Congress has indicated explicitly that that entity has the
power to use such an exemption.

                              IV. Conclusion

   We conclude that the Commission’s meetings dealing with its issuance
of subpoenas may be closed on the basis o f exemption (10), assuming that
there is determined to be a need for so closing such meetings. O ur conclu­
sion is confined to the availability o f exemption (10). In the context of
other exemptions using the word “ agency,” such as exemption (2) (“ inter­
nal personnel rules and practices o f an agency” ) and exemption (9)(B)
(“ frustrate implementation o f a proposed agency action” ), we consider
that the term “ agency” should be interpreted to mean “ President or
agency.” That is, to make the Sunshine Act exemptions consistent with
the scheme o f the FACA, it is necessary to read “ agency” as including the
President. But if, for example, a proposed Presidential or agency action is
not likely to be frustrated within the meaning o f exemption (9)(B) by an
open meeting, exemption (9)(B) would not in our view apply. For although
Senator Kennedy’s language refers generally to “ certain circumstances” in
which closure o f commission meetings would be justified, it seems most
reasonable to limit those circumstances, insofar as they are arguably rele­
vant to the subpoena context.

                                   L arry A . H am m ond
                            Deputy Assistant A ttorney General
                                                 Office o f Legal Counsel




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