Public Citizen v. National Economic Com'n, Civ. A. No. 88-3484.

Decision Date05 January 1989
Docket NumberCiv. A. No. 88-3484.
PartiesPUBLIC CITIZEN, The Bureau of National Affairs, The Washington Post, The Wall Street Journal, and Stephen Wildstrom, Plaintiffs, v. The NATIONAL ECONOMIC COMMISSION and Administrator of the General Services Administration, Defendants.
CourtU.S. District Court — District of Columbia

Alan B. Morrison, Eric R. Glitzenstein, Eleanor H. Smith, Public Citizen Litigation Group, Washington, D.C., for plaintiffs.

Charles F. Flynn, Asst. U.S. Atty., Washington, D.C., for defendants.

MEMORANDUM OPINION

JOYCE HENS GREEN, District Judge.

On December 9, 1988, this Court issued a memorandum opinion granting plaintiffs' motion for a temporary restraining order which prohibited defendants from closing to the public the proposed December 12, 1988 meeting of the National Economic Commission ("Commission"), at which it intended to discuss economic assumptions and budget options. Thereafter, the December 12 meeting was rescheduled to January 4, 1989. On December 12, 1988, plaintiffs filed an amended complaint and motion for a preliminary or permanent injunction, seeking to prevent defendants from closing to the public the January 4 meeting as well as certain subsequent meetings under the Federal Advisory Committee Act ("FACA"), 5 U.S.C.App. II (1972), as amended.1 On December 16, 1988, defendants filed a motion for summary judgment, asserting that the January 4 meeting and the subsequent meetings could be lawfully closed under exemption 9(B) of the Government in the Sunshine Act ("Sunshine Act"), 5 U.S.C. § 552b(c)(9).2 Defendants advised the Court by a memorandum filed on December 23, 1988 that the January 4, 1989 meeting had been rescheduled once again for January 10, 1989.3

Having carefully considered plaintiffs' motion, defendants' motion, and the entire record, the Court grants plaintiffs' motion for a permanent injunction and denies defendants' motion for summary judgment.

I. BACKGROUND

The relevant facts up until this stage of the litigation have been adequately set out in this Court's Memorandum Opinion of December 9, 1988 and need not be repeated here. The January 10, 1989 meeting, which has been twice re-scheduled from its original date of December 12, 1988, is the first of twelve meetings that have been scheduled by the Commission. The subject matter of the January 10, 1989 meeting has not changed. Two issues are to be discussed: (1) "economic assumptions", i.e., projections of growth, inflation, interest rates, and unemployment, and (2) "budget options", i.e., spending cuts or revenue measures. Senior economists from the Office of Management and Budget ("OMB") and the Congressional Budget Office ("CBO") plan to answer questions and give testimony before the Commission.

The agenda for the remaining meetings of the Commission is set forth in a memorandum to the members of the Commission dated October 12, 1988. First Mathiasen Declaration, ¶ 4; Def. Ex. B.4 Originally, meetings were scheduled to take place between November 18 and December 16, 1988. On October 13, 1988, Drew Lewis and Robert Strauss, Co-Chairmen of the Commission, wrote to Richard G. Austin, Acting Administrator of the General Services Administration, requesting a written determination that eleven meetings be closed (some meetings in whole, some in part) under 5 U.S.C. § 10(b), (c)(2) sic. Def.Ex. C. They enclosed a draft determination for Austin to consider. By letter dated October 24, 1988, Lewis and Strauss again wrote to Austin, supplementing their October 13, 1988 letter. Def.Ex. D. On October 26, 1988, Lewis and Strauss wrote yet again to Austin, supplementing their previous letters. Def.Ex. E. On November 3, 1988, the Administrator issued his determination, closing eleven meetings of the Commission to be held between November 28 and December 16 under exemption 9(B) of the Sunshine Act, 5 U.S.C. § 552b(c)(9). Def. Ex. F.5 Because the Commission later decided not to hold itself to a self-imposed December 21 deadline for issuance of its recommendations, the closed meetings listed in that memorandum were not held. First Mathiasen Declaration, ¶ 7. The Commission has not held any of these meetings as of this date.

Defendants state in their Memorandum of Points and Authorities in Support of Defendants' Motion for Summary Judgment and in Opposition to Plaintiffs' Motion for a Preliminary Injunction ("Def. Memo.") that "plaintiffs are correct in assuming ... that the topics of the closed meetings will closely follow those announced in October: `economic assumptions and treatment of social security', `alternative baseline concepts', `fiscal policy and deficit targets', `components of deficit reduction package', `spending programs', `deficit reduction options', and `deficit reduction options and enforcement.'" Def. Memo., at 5. The eleven meetings listed in the November 3, 1988 determination of the Acting Administrator and described in the October 12, 1988 memorandum are the meetings with which the Court is presently concerned. Plaintiffs now seek a permanent injunction preventing defendants from closing to the public these meetings as well as any other meetings in which the Commission intends to address these issues.6

II. ANALYSIS

The issue before the Court is virtually identical to the issue that existed on plaintiffs' motion for a temporary restraining order: Does exemption 9(B) of the Sunshine Act apply to meetings of the National Economic Commission where the above topics are to be addressed?7 Defendants vehemently argue that this question must be answered in the affirmative. In support of their position, defendants offer the same arguments previously raised in their opposition to plaintiffs' motion for a temporary restraining order. They sum up their concerns at page 11 of their memorandum.

In particular, the Commission's concerns break down into two interrelated categories: first, the likely ramifications of public testimony by the senior economists from the Office of Management and Budget and the Congressional Budget Office, and second, the likely consequences of public examination of the internal debate by the Commission members themselves.

Def.Memo., at 11.

Defendants also continue to express their previously stated concerns that the senior economists from OMB and CBO will not be candid in public testimony before the Commission and that the Commission members themselves will be inhibited in publicly questioning these witnesses. Defendants state:

The Commission faces the dual problem of encouraging the witnesses to be frank and open in their testimony and allowing the Commission members themselves to be unreserved in questioning the witnesses.

Def.Memo., at 12 (emphasis in original).

In an attempt to bolster their position, defendants attach three new declarations to their memorandum. However, these declarations add little, if anything, to the arguments previously raised and rejected by this Court. In the first of the three declarations, Co-Chairman Drew Lewis states two major reasons that some meetings of the Commission should be closed to the public.

First, public officials, if they are responsible, must be circumspect in their public comments. Market reactions to incorrectly reported and/or misunderstood statements or statements taken out of context by senior government officials are facts of life. The risk is greater when the statements are made by persons who are perceived to be decision makers, close to decision makers, or parts of small groups making a decision ...
In this respect this Commission is precisely like a committee of Congress with jurisdiction in a particular area. Although the members often have public positions, at some point the members have an opportunity to speak bluntly with one another without public observation, as they try to reach a compromise.... The Commission will not succeed if members of the Commission must work under the dual concern of either maintaining their public stances and or fearing that their statements, and even their short term disagreements, will lead to damaging financial speculation both here and abroad.
Second, for some elements of the Commission's work such as economic assumptions, the nature of the information we receive from an outside source can be, from my experience, markedly different if the meeting is public rather than private....
Any realistic policy maker understands that the questions that can be asked of a witness, such as the officials of the Office of Management and Budget and Congressional Budget Office whom we would like to bring before the Commission in closed session, are markedly different if the questioning is in public rather than private. Likewise, the answers that can be expected of such witnesses will be significantly different.
Holding all of the Commission's working sessions in public will alter the outcome of the Commission's work because of the conscientious efforts of each Commissioner to avoid discussion, comments or even confrontation, that could result in unwarranted speculation in the financial markets. Experienced public officials know that their public statements must be undertaken with care, be they to the press, in speeches or in television or radio interviews.... I can only state from my experience that the Commission must have an opportunity to work out its differences in private if it is to most effectively execute the mandate entrusted to it by Congress.

Lewis Decl., ¶ 6. In the second declaration, Co-Chairman Robert Strauss explains why the internal debate must be protected from public scrutiny until the final recommendations are made. He states that

The recommendations of this Commission will inevitably have an effect upon financial markets both here and abroad. However, it will be less disruptive to these markets if there is only one response to a completed set of recommendations, rather than repeated effects from partial reports which would occur if every aspect of the
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