Common Cause v. Nuclear Regulatory Commission
8 Media L. Rep. (BNA) 1190, 218 U.S. App. D.C. 262, 674 F.2d 921 (1982)
Rule of Law:
The Government in the Sunshine Act requires that multi-member federal agency budget deliberations be open to the public, as there is no blanket exemption for the budget preparation process, and specific exemptions must be narrowly construed and proven by the agency for particular portions of a meeting.
Facts:
- In July 1980, the Nuclear Regulatory Commission (Commission) scheduled a series of meetings to prepare its annual budget request for fiscal year 1982, initially announcing that these sessions would be open to the public.
- Before the first meeting on July 18, 1980, the three Commissioners present voted unanimously to close all budget meetings scheduled for the next 30 days, relying solely on Exemption 9(B) of the Sunshine Act.
- A representative of Common Cause, who wished to attend the July 18, 1980 meeting where Commissioners received a preliminary staff briefing on budgetary needs, was excluded.
- In July 1981, the Commission scheduled meetings to discuss its budget request for fiscal year 1983, deciding to hold preliminary staff briefings in public but to close 'markup/reclama' meetings (where Commissioners decide specific funding levels for proposals to OMB and consider intra-agency appeals).
- On July 27, 1981, the Commission held its markup/reclama meeting in closed session, discussing final budget figures for submission to OMB, evaluating regulatory programs, determining budgetary priorities, and selecting strategies to maximize budgetary resources.
- After submitting its budget request to OMB in September 1981, OMB proposed substantial reductions and gave the Commission an opportunity to appeal (reclama) the cutbacks by October 19, 1981.
- The Commission sought to hold a closed session to discuss its reclama strategy to OMB, arguing that disclosing its priorities, negotiation strategy, and fallback positions would 'significantly frustrate' its goal of minimizing OMB's reductions.
- On October 15, 1981, the Commission held a two-part budget meeting to prepare its reclama to OMB; the first part, dealing generally with the budget request status, was open, while the second part, considering specific budget items for the reclama, was held in closed session.
Procedural Posture:
- Common Cause filed suit in the United States District Court for the District of Columbia on September 15, 1980, seeking a declaratory judgment that the closure of the July 18, 1980 meeting violated the Sunshine Act, an injunction ordering release of the transcript, and an order compelling attendance at similar future meetings.
- The District Court granted summary judgment for Common Cause on July 2, 1981, ruling the Commission unlawfully closed its July 18, 1980 meeting, finding Exemption 9(B) inapplicable, and permanently enjoining the Commission from closing future meetings 'of a similar nature.'
- On July 21, 1981, Common Cause sought an order from the District Court to enforce the July 2, 1981 injunction by requiring the scheduled markup/reclama meeting (July 27, 1981) to be held in open session.
- After an in camera review of the transcript of the July 27, 1981 closed meeting, the District Court, on August 25, 1981, ordered the Commission to release the transcript to the public.
- On September 9, 1981, the District Court issued a written order holding the Commission in civil contempt for closing the July 27, 1981 meeting, allowing the Commission to purge its contempt by releasing the transcript within ten days.
- The Commission noted an appeal from the District Court's July 2, 1981 order (No. 81-1975) on August 28, 1981.
- On an emergency motion, the United States Court of Appeals for the District of Columbia Circuit granted a stay of the District Court's September 9 contempt order (No. 81-2002).
- The District Court refused the Commission's request to hold its October 15, 1981 reclama discussion meeting in closed session, ordering it to be held open.
- On an emergency motion, the Court of Appeals granted a partial stay, allowing the Commission to close only those specific portions of the October 15, 1981 meeting during which discussions were exempt, and ordered the Commission to submit a verbatim record to the District Court.
- After an in camera inspection of the closed portion of the October 15, 1981 meeting transcript, the District Court, on October 22, 1981, ordered the transcript released (No. 81-2147).
- The Commission's appeals from all three District Court orders (Nos. 81-1975, 81-2002, and 81-2147) were consolidated for hearing and determination by this Court of Appeals.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does the Government in the Sunshine Act permit the Nuclear Regulatory Commission to close its budget deliberation meetings to the public under Exemption 9(B) (frustration of proposed agency action), Exemption 2 (internal personnel rules), or Exemption 6 (personal privacy), thereby withholding transcripts of those meetings?
Opinions:
Majority - J. Skelly Wright
No, the Government in the Sunshine Act does not permit the Nuclear Regulatory Commission to close its budget deliberation meetings to the public under the asserted exemptions, as there is no blanket exemption for the budget preparation process, and none of the specific exemptions apply to the discussions that actually occurred. First, the District Court’s injunction of July 2, 1981, which permanently enjoined the Commission from closing future meetings “of a similar nature” to the July 18, 1980 meeting, failed to satisfy the specificity requirements of Federal Rule of Civil Procedure 65(d). The phrase “similar in nature” was ambiguous, lacked reasonable detail, and was susceptible to multiple interpretations, failing to provide adequate notice of the prohibited activity. Consequently, the District Court’s September 9, 1981, finding of civil contempt for violating this vague injunction is also vacated. Regarding the Sunshine Act, its fundamental policy is to open multi-member federal agency deliberations to public view, enhancing accountability and informed public debate. Exemptions from this general presumption of openness are to be narrowly construed, and the burden of proof rests with the agency. Congress deliberately chose to open the predecisional process in multi-member agencies, rejecting calls for a general exemption for such deliberations, unlike the Freedom of Information Act. The Budget and Accounting Act of 1921, which centralized executive budget formulation, does not mandate secrecy in the budget process nor does it override the Sunshine Act’s specific requirements. It simply requires the President to submit a unified budget, not that the process of developing it be secret. Furthermore, Exemption 3 of the Sunshine Act (matters exempted by statute) does not apply because the Budget and Accounting Act lacks explicit confidentiality provisions. Exemption 9(B), which permits closing meetings if “premature disclosure” would “be likely to significantly frustrate implementation of a proposed agency action,” must be construed narrowly. Legislative examples of this exemption (e.g., embargoes, mergers, collective bargaining, real estate purchases) involve disclosure affecting private parties’ decisions, potentially damaging government regulatory or financial interests. Budget discussions, conversely, primarily concern political decisions by the President and OMB rather than direct “agency action” for which the Commission has ultimate responsibility. The Commission’s argument about losing leverage in negotiations with other government entities (OMB and the President) for budgetary resources does not align with the intent of Exemption 9(B) to protect against harm to the government as a whole or the public interest. Instead, disclosure of budget deliberations serves the affirmative purposes of the Sunshine Act by opening important policymaking to public scrutiny. Exemption 2, covering matters related “solely to the internal personnel rules and practices of an agency,” is also narrowly construed, adopting the standards of Dep’t of Air Force v. Rose. Budget allocations, personnel cutbacks, and evaluations of offices or programs are not solely internal personnel matters, as they significantly impact the Commission’s ability to fulfill its public responsibilities and are of considerable public interest. Exemption 6, which protects “information of a personal nature whose disclosure would constitute a clearly unwarranted invasion of personal privacy,” does not apply to discussions concerning the qualifications or performance of government officials with executive responsibilities. This exemption was not intended to shield substandard performance by public executives, as the public has a special interest in their performance. After an in camera inspection of the transcripts from the July 27, 1981, and October 15, 1981, closed meetings, the court concluded that no portion of either meeting contained material falling within any of the asserted exemptions. Therefore, the Commission failed to meet its burden of proving lawful closure, and the full transcripts must be released to the public.
Analysis:
This case significantly strengthens the public’s right to open government under the Government in the Sunshine Act, affirming its broad reach over predecisional agency deliberations. It clarifies that agencies cannot claim blanket secrecy for budget processes based on internal government negotiating dynamics or general personnel considerations. The court’s narrow interpretation of exemptions, particularly 9(B), 2, and 6, establishes a high bar for agencies seeking to close meetings, emphasizing that public interest in understanding policymaking generally outweighs claims of internal administrative inconvenience. This ruling serves as a crucial precedent for future cases involving transparency in government budget formulation and other sensitive internal agency discussions.
