Disclosure of Advisory Committee Deliberative Materials ( 1988 )

Disclosure of Advisory Committee Deliberative Materials
T he Federal Advisory C om m ittee Act requires advisory com m ittees to m ake available for public in­
spection w ritten advisory com m ittee docum ents, including predecisional m aterials such as drafts,
w orking papers and studies.
T he disclosure exem ption available to agencies under exem ption 5 o f the Freedom o f Inform ation
A ct for predecisional docum ents and other privileged m aterials is narrowly lim ited in the context
o f the Federal Advisory C om m ittee Act to privileged inter-agency or intra-agency docum ents p re ­
pared by an agency and transm itted to an advisory com m ittee.
April 29, 1988
M e m o r a n d u m O p in io n f o r t h e A s s is t a n t A t t o r n e y G e n e r a l
O f f ic e o f L e g a l P o l ic y
Introduction and Summary
This responds to your request for the views of this Office concerning the ex­
tent to which exemption 5 of the Freedom of Information Act (“FOIA”), 5 U.S.C.
§ 552, is available to withhold deliberative materials prepared by an advisory
committee that would otherwise be subject to the disclosure requirements of sec­
tion 10(b) of the Federal Advisory Committee Act, 5 U.S.C. app. I (“FACA”).'
Section 10(b) provides in pertinent part that “[s]ubject to section 552 of title 5,
1 This memorandum addresses only exemption 5 of FOIA To the extent one of the other eight statutory ex­
emptions applies, the covered documents are independently protected from disclosure. We also emphasize both that
separation o f powers may preclude Congress from applying FACA to certain advisory groups and that documents
subject to the disclosure requirements of section 10(b) may be withheld pursuant to a valid claim o f executive priv­
ilege. We do not here address these constitutional bases for withholding documents but observe that several courts
have described the threat posed by a literal reading o f FACA to presidential powers See.e g , National Anti-Hunger
Coalition v. Executive Comm o f the President’s Private Sector Survey on Cost Control, 557 F. Supp. 524, 530
(D.D.C.), o ff d and remanded, 711 F.2 d l0 7 1 (D C Cir.), judgm ent amended, 566 F. Supp. 1515 (D.D.C. 1983)
(FACA is “obscure, imprecise, and open to interpretations so broad that it would threaten to impinge unduly
upon prerogatives preserved by the separation o f powers doctrine”); Nader v Baroody, 396 F. Supp 1231, 1234
(D D.C. 1975), vacated as moot. No 75-1969 (D.C Cir Jan. 10, 1977) (“Nowhere is there an indication that Con­
gress intended to intrude upon the day-to-day functioning of the presidency___ "). Thus, for example, it is the gov­
ernm ent’s position that the American Bar Association Standing Committee on the Federal Judiciary is not “uti­
lized” by the President and therefore not subject to FACA, o r alternatively, that the application of FACA to the
ABA Committee would unconstitutionally impinge on the President’s exclusive authority to nominate and appoint
Article III judges, subject to the advice and consent function o f the Senate. U.S. Const, art. II, § 2, cl. 2. Washing­
ton Legal Found v. United States Dept, o f Justice, 691 F. Supp. 483 (D D C. 1988) In addition, congressional dis­
closure statutes, including FACA, necessarily raise separation o f powers and executive privilege issues as applied
to communications among the President and his advisors and advice prepared for the President by his advisors See,
e g ,N ix o n v. G eneralServ Admin. ,433 U.S. 425,441-55 (1977); Soucie v Daw*/, 448 F 2d 1067, 1073 (D.C. Cir.
1971); National Anti-Hunger Coalition, 557 F. Supp. at 530. Because the operation of presidential powers in the
context of FACA is not the subject o f the present inquiry directed to this Office, the discussion herein is simply
meant to be illustrative.
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United States Code, the records, reports, transcripts, minutes, appendixes, work­
ing papers, drafts, studies, agenda, or other documents which were made avail­
able to or prepared for or by each advisory committee shall be available for pub­
lic inspection.”2 Exemption 5 o f FOIA exempts inter-agency and intra-agency
deliberative or predecisional documents from disclosure.3 The issue presented is
the scope to be given to exemption 5 in light of section 10(b)’s enumeration of
deliberative documents such as working papers and drafts as being specifically
subject to disclosure.4
We conclude that FACA requires disclosure of written advisory committee
documents, including predecisional materials such as drafts, working papers, and
studies.5 The disclosure exemption available to agencies under exemption 5 of
FOIA for predecisional documents and other privileged materials is narrowly
limited in the context of FACA to privileged “inter-agency or intra-agency” doc­
uments prepared by an agency and transmitted to an advisory committee. The
language of the FACA statute and its legislative history support this restrictive
application of exemption 5 to requests for public access to advisory committee
2 Section 10(b) o f FACA reads in full:
Subject to section 552 o f title 5, U nited States Code, the records, reports, transcripts, minutes, ap­
pendixes, working papers, drafts, studies, agenda, or other documents which were made available to
o r prepared for or by each advisory com m ittee shall be available for public inspection and copying at
a single location in the offices of the advisory committee o r the agency to which the advisory com­
m ittee reports until the advisory committee ceases to exist.
3 Exemption 5, 5 U.S.C. § 552(b)(5), provides that the disclosure obligations of FOIA do not “apply to matters
that are— (5) inter-agency or intra-agency memorandums o r letters which would not be available by law to a
party other than an agency in litigation with the agency ”
4 Public Citizen Litigation Group has also requested DOJ to issue a policy statement clarifying that the deliber­
ative process exemption does not “shield from public scrutiny” the drafts, working papers, and other deliberative
documents prepared by advisory committees. Public Citizen represented the ACLU in its suit to enjoin the Attor­
ney G eneral’s Commission on Pornography from holding meetings until it released drafts and working papers.
A C L U v Attorney G eneral's Commission on Pornography, D epartment o f Justice, No. 86-0893 (D.D.C. filed Apr.
3, 1986) Although the Commission initially asserted that the documents were covered by exemption 5 as incor­
porated by FACA, the parties stipulated a settlement providing for release o f the documents and the suit was with­
drawn
s This Office has not previously addressed this issue directly Soon after FACA was enacted, we noted the po­
tential conflict between exem ption 5 and section 10, but did not opine on the proper resolution of the issue Mem­
orandum for Dwight A. Ink, Assistant Director, Office o f Management and Budget, from Roger C. Cramton, As­
sistant Attorney General, Office o f Legal Counsel, Re Treatment o f Exemption 5 o f the Freedom o f Information
Act in D enying Access to M eetings and Records o f Federal Advisory Committees (Jan. 2, 1973) In 1974, we ad­
vised the Clemency Board that it was an advisory committee and therefore subject to the disclosure provisions of
FACA The memorandum by Assistant Attorney General Antonin Scalia identified three potentially applicable
FOIA exem ptions, but conspicuously did not cite exemption 5. Memorandum for the Clemency Board, from An­
tonin Scalia, Assistant Attorney General, O ffice o f Legal Counsel (Sept. 24, 1974). In 1982, in the process of ren­
dering an opinion that activities by staff members on task forces to President’s Pnvate Sector Survey on Cost Con­
trol did not fall within the ambit o f FACA, we noted in dicta and without analysis that materials made available to
com m ittee had to be m ade available to the public under section 10(b), unless exempted under FOIA, in which case
it “need not be made publicly available under 10(b) o f FACA.” Memorandum for Fred F. Fielding, Counsel to the
President, from Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel, Re. President’s Private
Sector Survey on Cost C ontrol at 7 (Nov. 1, 1982) We also opined in 1982 that advisory committee documents are
available through FOLA requests made to the supervising agency and that the advisory committee must cooperate,
but we did not specifically address the impact o f exemption 5 Memorandum for Fred F. Fielding, Counsel to the
President, from Larry L. Simms, Deputy A ssistant Attorney General, Office o f Legal Counsel, Re: Applicability o f
the Freedom o f Information Act to Federal Advisory Committee (Dec. 30, 1982).
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documents. Moreover, since an advisory committee is not itself an agency, this
construction is supported by the express language of exemption 5 which applies
only to inter-agency or intra-agency materials.6
We emphasize that despite these conclusions many documents that are part of
the advisory committee process will not be subject to disclosure. Section 10(b)
itself applies only to materials made available to or prepared for or by an advi­
sory committee established by statute or reorganization plan or established or uti­
lized by the President or an agency. 5 U.S.C. app. I, §§ 3(2), 10(b). Accordingly,
in determining whether a document is to be disclosed the first issue is not whether
it is subject to an exemption under 5 U.S.C. § 552 but whether it meets this thresh­
old definition.
Analysis
A. Defining the Class of Documents to which Section 10(b) Applies.
By the express terms of section 10(b), deliberative materials, in order to be
subject to disclosure, must be “made available to or prepared for or by” an advi­
sory committee, 5 U.S.C. app. I, § 10(b), which is established by statute or reor­
ganization plan or “established or utilized by the President” or an agency. Id.
§ 3(2)(B) (emphasis added).7 The courts and this Office have construed the con­
cept of advisory committees established or utilized by the President or an agency
to preclude section 10(b)’s application to the work prepared by a staff member
of an advisory committee or a staffing entity within an advisory committee, such
as an independent task force limited to gathering information, or a subcommit­
tee of the advisory committee that is not itself established or utilized by the Pres­
ident or agency, so long as the material was not used by the committee as a whole.
The reasoning behind the construction of the concept is straightforward:
[Such staffing entities or subcommittees] do not directly advise
the President or any federal agency, but rather provide informa­
tion and recommendations for consideration to the Committee.
Consequently, they are not directly “established or utilized” by
the President or any agency . . . .
See National Anti-Hunger Coalition, 557 F. Supp. at 529. See also Memoran­
dum for Fred H. Wybrandt, Chairman, National Crime Information Center Ad­
6 We do not address or express any opinion in this memorandum on the separate issue of the disclosure obliga­
tions of the agency under FOIA with respect to written materials delivered from an agency advisory committee to
an agency.
7 FACA defines an advisory committee as “any committee, board, commission, council, conference, panel, task
force, or other similar group, or any subcommittee or other subgroup thereof, . . which is— (A) established by
statute or reorganization plan, or (B) established or utilized by the President, or (C) established or utilized by one
or more agencies, in the interest o f obtaining advice or recommendations for the President or one or more agencies
or officers of the Federal Government.” 5 U S.C. app I, § 3(2).
75
visory Policy Board, from Douglas W. Kmiec, Deputy Assistant Attorney Gen­
eral, Office of Legal Counsel (Apr. 28,1987) (“Wybrandt Memorandum”). This
limitation on section 10(b)’s disclosure requirement has important practical con­
sequences. For example, the President established a presidential advisory com­
mittee, the President’s Private Sector Survey on Cost Control (“Survey”), funded
by the Department of Commerce, but whose staff had to be paid for by the pri­
vate sector.8 A non-profit Foundation for the Survey, chaired by members of the
Executive Committee, organized the private staff into thirty-six task forces to
gather information, perform studies, and draft recommendations and reports for
the Executive Committee. Based on this structure, the district and appellate courts
concluded that the non-profit task forces were not subject to FACA because they
did not provide advice directly to the President or any agency, but rather per­
formed activities analogous to staff work. National Anti-Hunger Coalition, 557
F. Supp. at 529-30; 711 F.2d at 1075-76.9
Based on the same reasoning, as well as an exhaustive survey of the FACA
legislative history, this Office recently concluded that subcommittees of the Na­
tional Crime Information Center (“NCIC”) Advisory Policy Board are likewise
not covered by FACA because they “perform preparatory work or professional
staff functions in aid of, but not displacing, the actual advisory committee func­
tion performed by the Board.” Wybrandt Memorandum at 1.10Although each ad­
visory committee structure will determine the results in a particular case, the gen­
eral point can be made that FACA compels disclosure of a limited subset of
information, namely the material used by the advisory committee or subgroup
established or utilized by the ultimate decision-maker, which typically will be an
agency or the President.
B. The Scope of Exemption 5 in the Context o f Section 10(b)’s Disclosure
Requirements.
Assuming that documents are subject to section 10(b), we turn to the scope of
FO IA ’s exemption 5 under FACA. First, it is necessary to presume that Congress
did not intend to create an irreconcilable conflict between the two laws; i.e., on
the one hand, to protect deliberative advisory committee materials from public
inspection via exemption 5, but on the other, to order detailed disclosure of all
“records, reports, transcripts, minutes, appendixes, working papers, drafts, stud­
8 Exec. Order No. 12369, sec. 3(e), 3 C F.R. 190 (1983).
9 On the other hand, the subcommittee officially established by the Survey was held to be covered by FACA be­
cause it “is responsible for reviewing the task force reports and making detailed recommendations to the President
and the affected federal agencies.” Notional Anti-Hunger Coalition, 711 F.2d at 1072. The D.C. Circuit panel also
states in dictum that if the task force reports were in fact not exhaustively reviewed and revised by the Executive
Committee, but were merely rubber-stamped recommendations given little or no independent consideration, it
would be within a district court’s power to fin d that the provisions of FACA apply to the task forces as well. Id. at
1075-76.
10 As in our prior opinion, however, “[w]e must emphasize that our opinion should not in any way be read as
support for attempting to use subcommittees to evade the . . . requirements o f FACA.” W ybrandt Memorandum at
9.
76
ies, agenda, or other documents” that are otherwise covered by FACA.11 The po­
tential conflict is underscored by the obligation to disclose committee drafts,
working papers and studies, whereas exemption 5 is designed to preserve the in­
tegrity of precisely these types of “predecisional” internal deliberations from pub­
lic view.12 The two objectives, if not harmonized, would present an insurmount­
able internal statutory conflict.
We conclude that exemption 5 is not generally applicable to materials prepared
by or for an advisory committee, but that it does extend to protect privileged doc­
uments delivered from the agency to an advisory committee. This construction
gives meaning to exemption 5 without vitiating Congress’ enumeration of de­
liberative documents such as working papers and drafts as subject to disclosure.
It is also supported by a close reading of exemption 5 itself. Because by its terms
exemption 5 protects only inter-agency and intra-agency documents and because
an advisory committee is not an agency, documents do not receive the protection
of exemption 5 by virtue of the fact that they are prepared by an advisory com­
mittee. On the other hand, documents prepared by an agency do not lose the pro­
tection of exemption 5 by virtue of the fact that they are delivered to an advisory
committee.13
At the outset, we note that the application of FOIA to advisory committees
in the FACA statute is not a model of draftsmanship.14 Most glaringly, Con­
gress incorporated the FOIA exemptions, yet gave no explicit consideration to
11 Pursuant to section 10(b), the right o f public access to deliberative committee documents expires when the
“committee ceases to exist.” The material available for public inspection is thereafter restricted by the statute to the
“report made by every advisory committee and, where appropriate, background papers prepared by consultants.”
5 U.S.C. app. I, § 13. The Director o f OMB is responsible for filing this matenal, subject to FOIA, with the Library
of Congress where it is maintained for public inspection in a depository Id The depository materials will pre­
sumptively not include the preparatory matenal covered by section 10(b), such as working papers, drafts, studies,
and agendas, unless the materials are incorporated in the committee report or are appropriate background papers
prepared by consultants.
12 Exemption 5 in general protects agency documents that would normally be privileged in civil discovery. See
NLRB v Sears, Roebuck & Co., 421 U.S. 132, 149 (1975). To date, the Supreme Court has recognized five privi­
leges, including those expressly mentioned in the legislative history, as well as those that are “well-settled” in the
case law or are “rough analogies” to privileges recognized by Congress. United States v. Weber Aircraft Corp., 465
U.S. 792, 801-02 (1984). The privilege primarily at issue in the intersection o f FOIA and FACA is that protecting
advice and recommendations which are part o f the deliberative processes of government.
In addition to deliberative process, exemption 5 protects attorney work product, Hickman v. Taylor, 329 U.S.
495, 509-10(1947); FTC v. Groher, Inc., 462 U.S 19,25-28 (1983), matters covered by attomey-client privilege,
NLRB, 421 U.S. at 154, confidential commercial information generated to award contracts, Federal Open M arket
Comm, o f the Fed Reserve Sys. v Merrill, 443 U.S 340, 360 (1979), third-party witness statements to military in­
vestigators, Weber Aircraft, 465 U.S. at 792, and perhaps other privileges as well, see Durns v. United States Dept
o f Justice, 804 F.2d 701 (D.C. Cir.), reh’g en banc denied, 806 F.2d 1122 (D.C. Cir. 1986) (presentence reports);
H ooverv. United States Dep't. o f In te rio r,6 \\ F.2d 1132, 1138-42 (5th Cir. 1980) (expert witness reports).
13 W e express no opinion on the operation o f exemption 5 in the context of a FOIA request to an agency
14 The courts have noted the ambiguity of the FACA statute generally, and the problems that would be created
for the conduct o f government affairs by the literal application o f its terms See, e g , Natural Resources D efense
Council v Herrington, 637 F. Supp. 116, 118-21 (D.D.C. 1986), National Anti-Hunger Coalition, 557 F. Supp at
530; Center fo r Auto Safety v. Tiemann, 414 F. Supp 215, 223 (D.D C. 1976), a f f d in part, 580 F.2d 689 (D.C.
Cir 1978), Lombardo v Handler, 397 F. Supp. 792, 800 (D.D.C 1975), a ffd , 546 F 2d 1043 (D.C. C ir 1976),
cert, denied, 4 3 1 U.S. 932 (1977).
77
the difficulties in squaring exemption 5 and section 10. The legislative record
indicates in fact that minimal attention was given on the whole to the incorpo­
ration of FOIA or its intended operation in the particular context of advisory
committees.
On the Senate side, as described in the committee report from the Committee
on Government Operations, the clean FACA bill sent to conference, S. 3529, re­
flected “a compromise between the mandatory requirements of openness and pub­
lic participation contained in S. 1637 and the permissive agency option for pub­
lic access contained in S. 2064 and S. 1964.” Congressional Research Service,
95th Cong., 2d Sess., Federal Advisory Committee Act 166 (Comm. Print 1978)
(“Legislative History”). In tandem with this controversy about access to meet­
ings, the original three bills provided either for unrestricted access to committee
records and reports, S. 163715 and S. 2064,16 or did not provide for any disclo­
sure of written material whatsoever, S. 1964.17
Based on the hearings and additional study, it was concluded, according to the
Senate committee report, that despite “considerable opposition” “there was sub­
stantial merit in opening advisory committee deliberations and documentation to
the public.” Id. In exchange for granting the public a right of access to meetings
and documents, the protections o f FOIA were incorporated: “The exemptions un­
der the Freedom of Information Act were chosen because they had received the
most thorough scrutiny and consideration by the Congress in this sensitive area
between public disclosure and privileged information. Further, they seemed to
meet most of the objections raised as to openness during the hearings.” 18 Id. at
166-67. The FOIA exemptions constituted a ready made legislative vehicle for
balancing disclosure and privilege. The record, however, contains no additional
15 T he pertinent section o f S 1637, sec. 10(b), pertaining to reports and records provided:
Each Federal agency shall make available to the public for inspection and copying the records and
files, including agenda, transcrips [sic], studies, analyses, reports, and any other data compilations and
w orking papers, which were made available to or prepared for or by each advisory committee. Such
records shall be m aintained at a single location in each agency for a period of five years after the com ­
mittee ceases to exist.
R eprinted in Legislative History at 135.
16 S. 2064 provided in section 12(d), in pertinent part, as follows:
Each Federal agency shall make available to the public for inspection and copying the records and
files, including agenda, transcripts, studies, analyses, reports, and any other data compilations and
w orking papers, which were made available to or prepared for or by each agency advisory committee
(except to the extent they deal with national security matter).
R eprinted in Legislative History at 149.
17 S 1964 did, however, require in section 10(d) that the Comptroller General have access, “for the purpose of
audit and exam ination, to any books, documents, papers, and records of each statutory advisory committee.”
R eprinted in Legislative History at 143.
18 The opposition to open meetings came “ particularly from agencies whose committees dealt with such issues
as national defense and foreign policy, trade secrets, matters relating to the regulation and supervision o f financial
institutions and markets, and information concerning the competence and character of individuals, such as that taken
up by the grant review committees o f the National Institutes o f Health, the National Science Foundation, and NASA.”
See Legislative History at 166.
78
discussion that would suggest Congress was even aware of the potential conflict
posed by exemption 5 as applied to section 10 of FACA.19
In the statute as enacted, the language of S. 3529 was adopted in full, but the
structure was slightly altered. Rather than providing that all three sections would
be subject to 552(b), section 10(b) was prefaced with the “[s]ubject to section
552” language. No further elucidation of the relation between FACA and FOIA
was provided. Upon review, therefore, it seems fair to conclude that Congress
broadly opted in favor of disclosure for advisory committees, but in response to
specific problems raised, adopted FOIA as the vehicle for protecting certain
classes of materials. Beyond that, however, Congress did not explain its inten­
tions with respect to the interaction of FOIA and FACA in general or of exemp­
tion 5 in particular.
Absent apparent recognition by Congress of the problem, the proper applica­
tion intended for exemption 5 is necessarily drawn from the plain language of
section 10(b). At least as to deliberative, predecisional materials, such as work­
ing papers, drafts, and studies, there appears to be no doubt that Congress in­
tended full disclosure. The enumeration in extensive detail of specific kinds of
deliberative material subject to mandatory inspection and copying during the life
of the committee provides the best evidence that the exemption 5 protection for
deliberative materials was intended to have limited application as applied to
FACA.
The legislative history reinforces the view that Congress intended the narrow
application of exemption 5 to FACA. In particular, key legislators made numer­
ous and essentially uncontradicted statements that they intended the public to be
in a position to affect the committee’s deliberations and that they fully intended
to provide the public with access to deliberative committee materials during the
committee’s lifetime. For example, in sponsoring the bill on the Senate floor,
Senator Metcalf, as acting subcommittee chairman within the Committee on Gov­
ernment Operations, which submitted S. 3529, stated:20
19 The House bill, H.R. 4383, as amended, is even less illuminating In substance, the provision concerning re­
ports and records seems to be closely analogous to S. 3529: “The provisions of section 552 o f title 5, United States
Code, shall apply to all records and files, including agenda, transcripts, studies, analyses, reports, meeting notices,
and any other data, compilations, and working papers which were made available to or prepared for or by each ad­
visory committee.” Legislative History at 303. Yet the House committee report impliedly states that the reference
to 552 is actually to 552(a), namely that portion o f FOIA that broadly states the obligation to disclose, rather than
to 552(b), which sets forth the nine exemptions:
This provision has the effect of assuring openness in the operations o f advisory committees. This
provision coupled with the requirement that complete and accurate minutes o f committee meetings be
kept serves to prevent the surreptitious use o f advisory committees to further the interests o f any spe­
cial interest group. Along with the provisions for balanced representation contained in § 4 o f the bill,
this requirement o f openness is a strong safeguard o f the public interest.
Legislative History at 280.
20 In much the same vein, the subcommittee report accompanying S. 3529 quotes Senator M etcalf’s remarks
opening subcommittee hearings. His language, while not entirely unambiguous, would again strongly suggest that
the rationale for access to committee papers includes, rather than excludes, influence on the deliberative process:
Those who get information to policymakers, or get information for them, can benefit their cause,
whatever it may be. Outsiders can be adversely and unknowingly affected. And decision-makers who
79
Further evidence has shown that there exists a tendency among
advisory committees to operate in a closed environment, permit­
ting little opportunity for the public to be informed of their delib­
erations and recommendations, and o f the materials and infor­
mation on which they rely. . . .
Thus, the legislation provides both a housekeeping function in
the interests of efficiency and economy in Government and a func­
tion of disclosure and objective counsel— so that the public will
know what advice their Government is getting and how they might
add their contribution to the information process.
Legislative History at 198 (emphasis added). On the House side, Congressman
Moorhead supported H.R. 4383, as amended, emphasizing the following:
Another feature of the bill which must be applauded is the re­
quirement for public access to the deliberations and recommen­
dations of these advisory committees. All too often, such com­
mittees meet behind closed doors, and submit advice to Executive
departments without any opportunity for the public to comment
on or be aware of the purport of such advice.
Legislative History at 297.
Moreover, this construction is also supported by a close reading of the express
terms of exemption 5, which protects only inter-agency and intra-agency mem­
orandums. These terms do not apply to documents prepared by and in the pos­
session of an advisory committee because an advisory committee within the
meaning of FACA is neither an agency nor a sub-group within an agency.21FACA
specifically distinguishes between an advisory committee and an agency in its
section defining statutory terms, making clear that an advisory committee is not
20 (. . . continued)
get information from special interest groups who are not subject to rebuttal because opposing inter­
ests do not know about meetings — and could not get in the door if they did— may not make tempered
judgm ents. We are looking at two fundam entals, disclosure and counsel, the rights o f people to fin d
out what is going on and, i f they want, to do something about it.
S. Rep. No. 1098, 92d Cong., 2d Sess at 4 (1972), reprinted in Legislative History at 154 (emphasis added).
These views are seconded by Senator Percy:
The second m ajor element of the bill is its provisions fo r opening up advisory committees to pub­
lic scrutiny During the extensive hearings . . we becam e convinced that there were too many in­
stances where advisory committees w ere consulting with Government offices on important policies
and decisions w ithout an adequate guarantee that the public interest was being served Meetings are
typically closed to the public Minutes and documents used in meetings are typically not available for
public inspection.
Rem arks o f Senator Percy, 118 Cong. Rec. 30,274 (1972), reprinted in Legislative History at 202 (endorsing S.
3529).
21 D ecisions under FOIA hold that exemption 5 applies when an agency document in the possession of an agency
has been transmitted by a non-agency such as Congress, see infra note 29 O ur conclusion, however, applies only
to documents that are neither prepared by an agency nor in an agency’s possession.
80
an agency. It defines the term agency to have the same meaning as used in FOIA,
5 U.S.C. app. I, § 3(3),22 whereas it defines “advisory committee” as “any com ­
mittee, board, commission, council, conference, panel, task force, or other sim­
ilar group, or any subcommittee or other subgroup thereof’ established by statute
or reorganization plan or utilized by the President or one or more agencies “in
the interest of obtaining advice or recommendations.” 5 U.S.C. app. I, § 3(2).
More broadly, FACA is predicated on the assumption, emphasized several times
in the statute, that advisory committees give advice and recommendations,23
whereas agencies are operating arms of government characterized by “substan­
tial independent authority in the exercise of specific functions,” Soucie v. David,
448 F.2d at 1073, or the “authority in law to make decisions.” Washington Re­
search Project, Inc. v. HEW, 504 F.2d 238,248 (D.C. Cir. 1974). Several courts,24
as well as this Office,25 have construed the statutory distinction to signify that
advisory committees are not agencies 26
22 Pursuant to 5 U.S.C. § 551(1), the term “agency” is defined, subject to exceptions, as “each authority o f the
Government of the United States, whether or not it is within or subject to review by another agency.”
23 FACA in several provisions underscores the self-evident function o f advisory committees to provide advice.
See, e g , 5 U.S.C. app. I, § 2(6) (“the function o f advisory committees should be advisory only”); 5 U.S.C. app. 1,
§ 9(b) (“ Unless otherwise specifically provided by statute or Presidential directive, advisory committees shall be
utilized solely for advisory functions.”). See also Legislative History at 197-98 (Among the enumerated purposes
of S 3529 is “to assure that the functions o f Federal advisory committees shall be advisory only and that all mat­
ters under their consideration shall be determined solely by Federal officials and agencies ”). To the extent FACA
recognizes that advisory committees in individual circumstances might exceed their advisory function, 5 U.S.C.
app I, § 9(b), (c)(F), the general conclusion that advisory committees are not agencies or divisions of agencies
would need to be evaluated based on the specific powers and activities o f the committee
24 See, e.g , Nader v. Dunlop, 370 F. Supp. 177, 178-79 (D.D.C. 1973) (exemption 5 does not exempt from pub­
lic access meetings o f advisory committees to the Cost o f Living Council); Gates v. Schlesinger, 366 F. Supp. 797,
798-800 (D D C. 1973) (same with respect to advisory committee to Department o f Defense) These two cases ap­
ply to meetings, 5 U.S C app. I, § 10(d), not documentary disclosure, 5 U.S.C. app. I, § 10(b), but because they
preceded the 1976 amendment to FACA which eliminated the availability of exemption 5 for meetings, but not for
documents, the reasoning is applicable to documentary materials under the statute as presently written
25 Memorandum for the Clemency Board, from Antonin Scalia, Assistant Attorney General, Office of Legal
Counsel (Sept 24, 1974) (explaining that if advisory committees were considered to be agencies, the full panoply
of requirements mandated by the Administrative Procedure Act would apply to committee operations).
26 We are aware o f no language in FACA’s legislative history supporting the construction that advisory com ­
mittees are agencies. One possible exception is a remark by Congressman Thone in reference to a provision in the
House bill regarding access to advisory committee documents filed with the Library of Congress*
Subsection (b) provides that the Freedom o f Information Act is applicable to this section.
This should remove any doubt as to whether advisory committees are subject to the Freedom of
Information Act. Otherwise, 1 assume, it might be argued that advisory committees do not fall within
the definition o f agency in section 551(1) o f the Freedom o f Information Act and are, therefore, not
subject to the act.
118 Cong. Rec 16,298(1972).
This isolated remark about a provision collateral to section 10 carries little weight, especially since it runs
counter to the statute’s language and other legislative history See, e g , Ernst & Ernst v Hochfelder, 425 U S. 185,
203 n.24 (1976); NLRB v Fruit Packers, 377 U.S. 58, 66 (1964) Moreover, the substance of the remark is am ­
biguous. The congressman may have intended to say that advisory committees are agencies or, alternatively, that
the Act expressly makes FOIA applicable to FACA, and therefore avoids any question whether FOIA is indepen-
dently applicable to advisory committees as agencies. See, e g , Memorandum for the Clemency Board, from An­
tonin Scalia, Assistant Attorney General, Office o f Legal Counsel at 9 (Sept. 24, 1974) (“There are two routes by
which the Freedom o f Information Act may be applied to the Board. One is through the Federal Advisory C om ­
mittee Act. A second possible route is through the Administrative Procedure Act, of which the Freedom of Infor­
mation Act is a part, if the [Clemency] Board is to be regarded as an agency, as that term is defined in the A dmin­
istrative Procedure Act.”)
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For similar reasons, an advisory committee cannot be deemed a component
within an agency whose deliberative documents are subject to exemption 5. The
Act requires that all legislation authorizing an advisory committee “assure that
the advice and recommendations of the advisory committee . . . not be inappro­
priately influenced by the appointing authority or by any special interest, but will
instead be the result of the advisory committee’s independent judgment.” 5 U.S.C.
app. I, § 5(b)(3). The emphasis on independence, and on judgment, highlights
the separation of committees from agencies, as do the provisions for independent
staffing, 5 U.S.C. app. I, § 5(b)(4), temporary duration, 5 U.S.C. app. I, § 14, the
prohibition of committees composed wholly of full-time federal officials or em­
ployees, 5 U.S.C. app. I, § 3(2), and the requirement that “[n]o advisory com­
mittee shall meet or take any action until an advisory committee charter has been
filed” with the appropriate authority, 5 U.S.C. app. I, § 9(c). As the district court
in Gates, 366 F. Supp. at 799, observed: “[T]he exchange of information does
not make an advisory committee ‘part of’ its government agency.”
The committee is not an internal organ, but again by its very nature, is a group
o f ‘outsiders’ called upon because of their expertise to offer views and comments
unavailable within the agency.27 In short, given that an advisory committee is
neither an agency itself nor a component of an agency, exemption 5 cannot gen­
erally apply to FACA advisory committees’ documents since by its terms it only
protects “inter-agency and intra-agency memorandums.”28
On the other hand, by its express terms exemption 5 would apply to delibera­
tive documents prepared by an agency and delivered to the advisory committee.29
27 Moreover, the Senate report urges that advisory committees not be formed if the agency can accomplish the
advisory work imemaUy Advisory committees are plainly meant to supplement agency resources, not duplicate
them. A lthough the Act authorizes agency officials to call and adjourn meetings, 5 U.S.C. app. I, § 10(e) and (f),
and broadly m onitor the operation of advisory committees established by an agency, 5 U.S.C. app. I, § 8, these pro­
visions implement the A ct’s designated purpose to rein in the operation of advisory committees, not place them
within the jurisdictional confines of the agency or subject them to agency mandate on the substantive issue under
review by the committee
28 W e recognize that under FOIA the courts have ruled on several occasions that materials supplied to an agency
by outside experts and consultants, see, e g., H oover v United States D ep’t o f Interior, 611 F.2d 1132, 1138 (5th
Cir. 1980) (report o f pnvate appraiser); Lead Industries A ss'n v. OSHA, 610 F.2d 70, 83 (2d Cir. 1979) (analyses
o f scientific testimony prepared by consultants); or the courts, see Durns v Bureau o f Prisons, 804 F.2d 701 (D D.C.
1986) (presentence reports); or Congress, see, e.g., Ryan v Departm ent o f Justice, 617 F.2d 781,789-90 (D.C. Cir.
1980) (Senators’ responses to agency’s questionnaire intra-agency records), fall within exemption 5— thereby
loosely construing the meaning o f “intra-agency.” This line o f cases, however, does not alter our conclusion that
an advisory committee cannot invoke exemption 5 ’s inter-agency exemption to protect materials prepared by it and
in its possession. These cases simply stand fo r the proposition that an agency may protect certain documents in its
possession from disclosure. Accordingly, u n d er this line of cases, when an agency makes use of advisory materi­
als, such materials may indeed properly become deliberative documents to the agency. Section 10(b), however, im­
poses disclosure requirements on the advisory committee itself.
29 This is consistent with the holding in Aviation Consumer Action Project v Washburn, 535 F.2d 101, 107-08
(D.C. Cir. 1976) that agencies may disclose predecisional documents to advisory committees without waiving their
ability to protect the records under exemption 5, at least where such disclosures further the “free and candid ex­
change o f ideas during the process of decision-making.” It is also consistent with FOIA caselaw holding that the
delivery o f internal documents to Congress does not necessarily vitiate exemption 5 protection. See, e g , Leteher
v United States Dept, o f Justice, 3 GDS 82,257, 82,714 (D.D.C. 1982) ("documents reflecting consultations be­
tween CIA and Congress are protected by exem ption 5 since such consultations are an integral part o f the deliber­
ative process and to discuss this process in public view would inhibit frank discussions”); Allen v Department o f
D efense, 580 F. Supp 74, 83 (D D.C. 1983) (“exemption 5 may, in an appropriate case, be applied to agency-con­
gressional communications”).
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Accordingly, our construction still gives vitality to exemption 5 in the context of
section 10(b) disclosure requirements. Under this construction, documents trans­
mitted to an advisory committee by an agency do not lose the protection of an
agency’s deliberative process exemption under FOIA.
Conclusion
For the foregoing reasons, exemption 5 properly applies under FACA when
the agency has transmitted to an advisory committee a document that would be
protected from disclosure if in the possession of the agency. Under the detailed
enumeration of covered materials in section 10 of FACA, however, the advisory
committees must, as a general matter, disclose the materials “made available to”
the committee, “prepared by” the committee or “prepared for” the committee, so
long as the committee is utilized or established by the President, an agency, or
statute or reorganization plan, and then only “until the advisory committee ceases
to exist.” 5 U.S.C. app. I, § 10(b).
John O. M c G in n is
Deputy Assistant Attorney General
Office of Legal Counsel
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