[Questions Concerning Meetings Subject to the Federal Advisory Committee Act]

B-202455, MAR 21, 1985

FEDERAL ADVISORY COMMITTEE ACT - APPLICABILITY DIGEST: GAO COMMENTS TO GSA ON INTERIM RULE IMPLEMENTING THE FEDERAL ADVISORY COMMITTEE ACT RECOMMEND THAT THE RULE BE REVISED TO PROVIDE ADDITIONAL GUIDANCE TO AGENCIES ON MEETINGS HELD TO OBTAIN ADVICE OF INDIVIDUAL ATTENDEES AND NOT TO OBTAIN CONSENSUS ADVICE. GAO RECOMMENDS THAT THE APPLICABILITY OF THE ACT BE DETERMINED ON THE BASIS OF OVERALL CIRCUMSTANCES, AND NOT MERELY ON WHETHER PARTICIPANTS HAVE BEEN INFORMED THAT NO CONSENSUS ADVICE IS BEING SOUGHT.

THE HONORABLE DWIGHT A. INK ACTING ADMINISTRATOR GENERAL SERVICES ADMINISTRATION

DEAR MR. INK:

THIS RESPONDS TO AN INVITATION FROM THEN-ACTING ADMINISTRATOR KLINE, RELAYED TO US THROUGH HIS LETTER OF NOVEMBER 6, 1984, TO CHAIRMAN JOHN D. DINGELL, SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS, HOUSE COMMITTEE ON ENERGY AND COMMERCE, FOR OUR SUGGESTIONS ON DISTINGUISHING BETWEEN MEETINGS SUBJECT TO THE FEDERAL ADVISORY COMMITTEE ACT, 5 U.S.C. APP. SECS. 1-15 (1982), AND THOSE MEETINGS TO WHICH THE ACT DOES NOT APPLY. MR. KLINE'S INVITATION WAS EXTENDED AFTER HIS REVIEW OF OUR DECISION B-202455, AUGUST 30, 1984, WHICH ADDRESSED THE APPLICABILITY OF THE FEDERAL ADVISORY COMMITTEE ACT TO CERTAIN MEETINGS HELD BY THE DEPARTMENT OF ENERGY. OUR DECISION CONCLUDED THAT GSA'S INTERIM RULE IMPLEMENTING THE ACT CORRECTLY EXEMPTS FROM THE ACT'S RESTRICTIONS MEETINGS HELD SOLELY FOR THE PURPOSE OF OBTAINING THE ADVICE OF INDIVIDUAL ATTENDEES, RATHER THAN FOR THE PURPOSE OF OBTAINING "CONSENSUS ADVICE." AT THE SAME TIME, HOWEVER, WE EXPRESSED THE VIEW THAT GSA'S RULE DID NOT CONTAIN ADEQUATE GUIDANCE TO PREVENT IMPROPER UTILIZATION OF THIS EXEMPTION. WE HAVE PROVIDED BELOW SEVERAL SUGGESTIONS TO IMPROVE GSA GUIDANCE IN THIS AREA.

GSA'S INTERIM RULE, PROMULGATED ON APRIL 28, 1983, INCLUDES A LIST OF "ADVISORY MEETINGS OR GROUPS NOT COVERED BY THE (FEDERAL ADVISORY COMMITTEE) ACT OR THIS REGULATION." ONE ITEM IN THAT LIST EXEMPTS FROM THE ACT:

"ANY MEETING INITIATED BY A FEDERAL OFFICIALS) WITH MORE THAN ONE INDIVIDUAL FOR THE PURPOSE OF OBTAINING THE ADVICE OF INDIVIDUAL ATTENDEES AND NOT FOR THE PURPOSE OF UTILIZING THE GROUP TO OBTAIN CONSENSUS ADVICE OR RECOMMENDATIONS." 41 C.F.R. SEC. 101-6.1004(J) (1984).

THE RULE CONTAINS NO FURTHER GUIDANCE ON THIS POTENTIALLY-BROAD EXEMPTION, ALTHOUGH GSA NOTES THAT ITS PREAMBLE TO THE INTERIM RULE (NOT INCLUDED IN THE CODIFICATION) WARNS AGENCIES AGAINST ELEVATING FORM OVER SUBSTANCE TO EXEMPT ADVISORY MEETINGS FROM THE ACT. SEE 48 FED.REG. 19324, 19325 (APRIL 28, 1983).

WE RECOGNIZE THAT, FOR PURPOSES OF APPLYING THE FEDERAL ADVISORY COMMITTEE ACT, A FUNCTIONAL DISTINCTION SHOULD BE MADE BETWEEN MEETINGS HELD FOR THE PURPOSE OF OBTAINING CONSENSUS VIEWS AND THOSE HELD AS A FORUM FOR THE EXPRESSION OF INDIVIDUAL VIEWPOINTS. IN THE FIRST CASE, THE PARTICIPANTS HAVE BEEN BROUGHT TOGETHER BY THE AGENCY AS A MEANS OF ASCERTAINING-- AND MEASURING THE STRENGTH AND SIGNIFICANCE OF-- VIEWS SHARED BY THOSE WITHIN THE GROUP, OR WITHIN A LARGER GROUP REPRESENTED BY THE INVITED PARTICIPANTS. IN THE SECOND CASE, THE AGENCY'S INTEREST IS IN ELICITING, THROUGH DISCUSSION, THE PERSONAL EXPERTISE AND SPECIAL KNOWLEDGE OF THE PARTICIPANTS AS INDIVIDUALS; THE GROUP FORUM IS UTILIZED AS A CONVENIENCE, AND AS A MEANS OF PROVOKING GREATER DISCUSSION THAN MIGHT BE EXPECTED ON AN INDIVIDUAL LEVEL.

AS A PRACTICAL MATTER, HOWEVER, DISTINCTIONS BETWEEN THE TWO TYPES OF MEETINGS MAY NOT BE SO EASILY DRAWN. AS WE STATED IN OUR DECISION OF AUGUST 30, 1984:

"*** THERE IS A FINE LINE BETWEEN AN AGENCY'S USE OF A SMALL GROUP OF EXPERTS OR CONSULTANTS FOR THE PURPOSE OF OBTAINING INDIVIDUAL VIEWS, AND ITS USE OF INFORMAL ADVISORY GROUPS SUCH AS THOSE WHICH *** HAVE BEEN HELD TO BE SUBJECT TO THE ACT."

ONE OF OUR PRINCIPAL CONCERNS, AS ILLUSTRATED IN THE SPECIFIC CASE DISCUSSED IN OUR PREVIOUS DECISION, IS THAT AGENCIES MAY IGNORE THE FUNCTIONAL DISTINCTION BETWEEN CONSENSUS AND NON-CONSENSUS MEETINGS (AS NOTED ABOVE), AND INSTEAD TRY TO EXEMPT MEETINGS OTHERWISE SUBJECT TO THE ACT SIMPLY BY INFORMING PARTICIPANTS THAT "NO CONSENSUS VIEW WILL BE SOUGHT." IT IS OUR VIEW, INSTEAD, THAT AGENCIES SHOULD DETERMINE THE APPLICABILITY OF THE ACT BY EXAMINING THE TOTALITY OF CIRCUMSTANCES SURROUNDING THE MEETING, INCLUDING SUCH FACTORS AS WHETHER PARTICIPANTS HAVE PREVIOUSLY BEEN USED BY THE AGENCY AS INDIVIDUAL CONSULTANTS OR EXPERTS, THE MANNER IN WHICH PARTICIPANTS HAVE BEEN SELECTED, MEETING FORMAT, AND THE EXTENT TO WHICH PARTICIPANTS MAY BE EXPECTED TO ACT AS REPRESENTATIVES OF OTHER GROUPS OR INDIVIDUALS. BECAUSE SUCH DETERMINATIONS ARE LIKELY TO BE DIFFICULT TO MAKE, WE BELIEVE THAT AGENCY OFFICIALS SHOULD BE ENCOURAGED TO CONSULT WITH THEIR COMMITTEE MANAGEMENT OFFICER AND WITH GSA'S COMMITTEE MANAGEMENT SECRETARIAT IN APPLYING THE EXCEPTION, AND SHOULD RESOLVE CLOSE CASES IN FAVOR OF THE ACT'S APPLICABILITY.

IN LIGHT OF THE ABOVE COMMENTS, WE WOULD RECOMMEND THAT 41 C.F.R. SEC. 101-6.1004(J) BE AMENDED TO REFLECT THESE LIMITATIONS, PERHAPS IN A MANNER SIMILAR TO THE FOLLOWING:

"(J) ANY MEETING INITIATED BY A FEDERAL OFFICIAL WITH ONE OR MORE INDIVIDUALS SOLELY FOR THE PURPOSE OF OBTAINING THE PERSONAL ADVICE OF INDIVIDUAL ATTENDEES, AND NOT FOR THE PURPOSE OF UTILIZING THE GROUP TO OBTAIN CONSENSUS ADVICE OR RECOMMENDATIONS. FOR EXAMPLE, THIS CATEGORY WOULD INCLUDE SITUATIONS IN WHICH AN AGENCY OFFICIAL CONVENES A PANEL OF CONSULTANTS SELECTED SOLELY BECAUSE OF THEIR INDIVIDUAL EXPERTISE ON A PARTICULAR SUBJECT, AS A MEANS OF PROVOKING DISCUSSION AND ELICITING INDIVIDUAL VIEWS AND INFORMATION.

"WHETHER A SPECIFIC MEETING FALLS INTO THIS CATEGORY SHOULD NOT BE DETERMINED SOLELY ON WHETHER PARTICIPANTS ARE INFORMED THAT A CONSENSUS VIEW WILL NOT BE SOUGHT, BUT SHOULD BE BASED UPON AN EXAMINATION OF THE OVERALL CIRCUMSTANCES OF THE MEETING. RELEVANT CIRCUMSTANCES ARE NOT LIMITED TO THOSE CONCERNING THE COURSE OF CONDUCT PLANNED FOR THE MEETING, BUT ALSO INCLUDE, FOR EXAMPLE, THE MANNER IN WHICH PARTICIPANTS ARE SELECTED. THUS, WHERE AN INDIVIDUAL IS SELECTED TO PARTICIPATE BECAUSE HIS OR HER INDIVIDUAL EXPERTISE IS WELL KNOWN TO-- AND HAS BEEN PREVIOUSLY UTILIZED BY-- THE AGENCY, THE MEETING IS LIKELY TO FALL INTO THIS CATEGORY. ON THE OTHER HAND, WHERE PARTICIPANTS HAVE BEEN SELECTED BY AN OUTSIDE ORGANIZATION KNOWN TO BE INTERESTED IN INFLUENCING AGENCY POLICY (AND THEREFORE MIGHT BE EXPECTED TO PRESENT THE VIEWS OF A PARTICULAR SECTOR SUCH AS INDUSTRY OR LABOR) IT IS LIKELY THAT THE MEETING WOULD BE SUBJECT TO THE ACT.

"DETERMINATIONS AS TO THE APPLICABILITY OF THIS PROVISION SHOULD BE MADE BY THE ADMINISTERING AGENCY IN CONSULTATION WITH THE AGENCY'S COMMITTEE MANAGEMENT OFFICER AND WITH GSA'S COMMITTEE MANAGEMENT SECRETARIAT. WHERE IT IS NOT CLEAR FROM THE CIRCUMSTANCES WHETHER A MEETING IS FOR THE EXPRESSION OF INDIVIDUAL OR CONSENSUS VIEWS, THE ACT SHOULD BE CONSIDERED TO APPLY."

WE APPRECIATE THE OPPORTUNITY TO PROVIDE OUR FURTHER COMMENTS ON THIS MATTER.