BNUMBER: B-281390
DATE: November 24, 1998
TITLE: [Letter], B-281390, November 24, 1998
**********************************************************************
B-281390
November 24, 1998
The Honorable F. James Sensenbrenner, Jr.
Chairman, Committee on Science
House of Representatives
Dear Mr. Chairman:
This is in response to your letter dated April 10, 1998, written
jointly with the Honorable George E. Brown, Jr., requesting our
opinion on several questions pertaining to the National Academy of
Sciences (Academy). You asked (1) whether the Federal Advisory
Committee Act Amendments of 1997 are applicable to the subgroups of
the Academy (National Research Council, National Academy of
Engineering, and Institute of Medicine), (2) whether the Freedom of
Information Act is applicable to the Academy, its subgroups or their
advisory panels, and (3) whether there are statutory or contractual
barriers to the release of underlying data by the Academy and its
subgroups to federal agencies, Congress, or the public. Your letter
also requested information on the committee processes at the Academy,
which are addressed separately.[1]
For the reasons stated below, we find that (1) the 1997 amendments do
apply to the subgroups of the Academy and thus federal agencies may
not use the advice or recommendations of the Academy and its subgroups
unless the requirements added by the 1997 amendments are met, (2) the
Freedom of Information Act (FOIA) does not apply to the Academy, its
subgroups or their advisory panels, and (3) other than criminal
statutes that prohibit the disclosure of national security type
information, federal laws generally do not directly bar private
entities like the Academy from releasing data; however, contractual
provisions with government agencies, private entities or individuals
could preclude the Academy's release of the data, and section 15(b)
added by the 1997 amendments could also limit the Academy's ability to
release documents if their release would disclose matters exempt under
FOIA.
In preparing this opinion, we formally solicited the views of the
Academy about these questions, and James R. Wright, General Counsel of
the Academy, provided his legal opinion in a letter which is enclosed
for your information. The Academy generally agrees with our answers
to these questions.
BACKGROUND
In 1972, Congress passed the Federal Advisory Committee Act (FACA),
which set standards and procedures for the uniform operation and
administration of advisory committees. Each federal advisory
committee is now required to file a charter with the General Services
Administration which includes its objectives, scope of duties,
estimated number of meetings and termination date. In addition to
having a federal employee attend all of their meetings, advisory
committees must also keep detailed minutes of meetings, open their
meetings to the public, and make records available to the public.
Crucial to whether an agency must comply with the requirements of FACA
is the definition for "advisory committee" found in FACA. An advisory
committee is broadly defined in FACA as:
[A]ny 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 of obtaining advice or recommendations for the
President or one or more agencies or officers of the Federal
Government . . . .
5 U.S.C.A. App. 2 sec. 3(2) (1996 & Supp. 1998).
The Academy has never followed FACA. An early court decision found
that a committee of the Academy was not an advisory committee under
FACA.[2] But in 1997, the Court of Appeals for the District of
Columbia Circuit held that an Academy committee doing work for the
Department of Health and Human Services did come under the definition
of advisory committee in FACA. Animal Legal Defense Fund, Inc. v.
Shalala, 104 F.3d 424 (D.C. Cir. 1997), cert. denied, ___ U.S. ___,
118 S.Ct. 367 (1997).
The Court of Appeals' holding in Animal Legal Defense Fund prompted
the Academy to seek enactment of Pub. L. No. 105-153, 111 Stat. 2689
(1997), the Federal Advisory Committee Act Amendments of 1997. The
amendments do two things. First, the amendments change the definition
of advisory committee for purposes of FACA by excluding committees
created by the Academy from the definition. The amended definition
states, ". . . such term [advisory committee] excludes . . . any
committee that is created by the National Academy of Sciences . . . .
" 5 U.S.C.A. App. 2 sec. 3(2)(1996 & Supp. 1998). By excluding the
Academy's committees from the definition of advisory committee, the
amendments exempt the committees from compliance with the first 14
sections of FACA.
Second, the amendments add a new section 15 to FACA that details
special requirements relating to the committees of the Academy. Most
important, the amendments preclude an agency from using the Academy's
advice or recommendations unless the section 15 conditions are met.[3]
Under section 15, the Academy's committees must be independent from
agency control.[4] The Academy must also provide public notice of
appointments to committees and of committee meetings. Data gathering
meetings must be open to the public, unless the Academy determines
that doing so would disclose matters exempt under FOIA.[5] If the
meetings are closed, the Academy must provide summaries of the closed
meetings. Written materials and reports must also be available to the
public, unless the Academy determines that doing so would disclose
matters exempt under FOIA.
ISSUES
You have asked us to answer the following questions concerning the
1997 amendments.
Question 1: Do the Federal Advisory Committee Act Amendments of 1997
apply to the subgroups of the Academy: National Research Council,
National Academy of Engineering, and Institute of Medicine?
After examining the structure of the Academy, and the language and
legislative history of the 1997 amendments, we find that the 1997
amendments do apply to the subgroups of the Academy. Thus federal
agencies may not use the advice or recommendations of the Academy and
its subgroups - the National Research Council (NRC), the National
Academy of Engineering (NAE), and the Institute of Medicine (IOM) -
unless the section 15 requirements added by the 1997 amendments are
met.
The 1997 FACA amendments exclude any committee "created by the
National Academy of Sciences . . ." from the definition of advisory
committee under FACA.
5 U.S.C.A. App. 2 sec. 3(2) (1996 & Supp. 1998). Thus committees created
by the Academy do not need to comply with sections 1 to 14 of FACA.[6]
At issue here is whether committees created by the NRC, NAE, and IOM
are also "created" by the Academy and therefore exempt from sections 1
to 14 of FACA but must comply with section 15, which was added by the
1997 amendments. The 1997 amendments do not specifically mention the
NRC, NAE, or IOM, all of which are connected to the Academy and use
advisory committees in developing their reports or recommendations.
In the next several paragraphs, we set out how each of the entities
was formed and describe the relationship among the entities. Then we
discuss whether committees formed by these entities are "created" by
the Academy for purposes of the FACA amendments.
The Academy and Its Subgroups
The Academy is a private corporation established under federal law in
1863 by a congressional charter approved by President Lincoln. It is
charged with reporting, when called upon by "any department of the
Government," on any subject of science or art, but it can only charge
the government for its expenses. 36 U.S.C. sec. 253 (1994). Among its
powers under the charter is the power to "make its own organization
including its constitution, by-laws, and rules and regulations . . .
." 36 U.S.C. sec. 252. Under these powers, the Academy created the NRC,
the NAE and the IOM. The Academy, as the only legal entity, is the
sole employer and is signatory to all contracts and grants, regardless
of whether the work is performed by the NRC, NAE or IOM.
The National Research Council (NRC) was the first of the entities in
question to be established by the Academy and was organized by the
Academy in 1916 at the request of President Wilson. It is not
separately incorporated. One of the purposes of the NRC is to
"stimulate research in the mathematical, physical, and biological
sciences . . . with the object of increasing knowledge, of
strengthening the national defense, and of contributing in other ways
to the public welfare." Exec. Order No. 2859, reprinted as amended in
36 U.S.C. sec. 253. The NRC is the "operating arm" of the Academy. Its
staff monitors advisory committees, provides editorial or support
services to committees, the Academy and its constituent entities, and
publishes reports.
The National Academy of Engineering (NAE) was established by the
Academy through articles of organization in 1964 as a separate
membership organization of the Academy. It is not incorporated.[7]
The NAE sponsors engineering studies, encourages engineering education
and research, and explores means for promoting cooperation in
engineering in the United States and abroad. It is described in the
Academy's annual report to Congress as "autonomous in its
administration and selection of its members." Although the NAE
executive committee selects its own office members and councils, it is
constrained by its Articles of Organization such that it is not
authorized to perform any activities that are not consistent with the
Academy's charter. It must also work jointly with the Academy in
matters dealing with Congress and other countries. Under its Articles
of Organization the NAE does not have the authority to amend its
Articles of Organization without the approval of the Academy. Most of
NAE's studies are conducted by the NRC.
The Institute of Medicine (IOM) was created by the Academy by charter
in 1970 to identify concerns in medical care, research and education
and to secure the services of members of appropriate medical
professions to examine policy matters relating to public health. It
is a membership society, but unlike the NAE and Academy, members are
not elected for life. The IOM is not incorporated. The IOM's
projects are subject to the approval and review procedures of the NRC
and its operations are subject to the general operating procedures of
the NRC. The members of committees conducting studies and preparing
reports for dissemination outside the IOM are appointed by the
President of the IOM, subject to the approval of the NRC chairman.
The interrelationships among the Academy, NRC, NAE and IOM are complex
and numerous. The president of the Academy is the chair of the NRC
and on the executive committees of the NAE and IOM. The NAE performs
most of its work through NRC committees, and the IOM follows the
general operating procedures of the NRC. The president of the IOM is
nominated by the IOM Council but appointed by the president of the
Academy. Both the president of the IOM and NAE are members of the NRC
executive committee. The NRC staff support the work of the Academy
and NAE.
According to a recent list of committees of the Academy, NRC, NAE, and
IOM, the NRC has by far the largest number of active committees, over
500, while the Academy itself has the fewest - only six active
committees. The NAE has eight active committees, and the IOM has over
90 active committees.[8]
Discussion
In analyzing whether a committee created by the subgroups of the
Academy is created by the Academy and thus subject to the section 15
requirements added by the 1997 amendments, we look first to the
statute.
In the 1997 amendments, the definition of what constitutes a FACA
advisory committee was amended to exclude, inter alia, committees
created by the Academy. The 1997 amendments revised the exclusions to
read as follows:
. . . such term [advisory committee] excludes (i) any committee
that is composed wholly of full-time, or permanent part-time,
officers or employees of the Federal Government, and (ii) any
committee that is created by the National Academy of Sciences or
the National Academy of Public Administration.[9]
5 U.S.C.A. App. 2 sec. 3(2)(1996 & Supp. 1998) (emphasis added). In
straightforward language, the amendments exclude all committees
created by the Academy from the definition. By logical extension,
this exclusion also applies to all of the subgroups of the Academy.
As can be seen from the facts presented above about the organization
of the Academy and its subgroups, it is clear that the Academy is the
creator of each group and is the only incorporated organization. The
interrelationships among the Academy entities are complex and
numerous, including interlocking executive committees and shared
policies and procedures, and the NAE, NRC, and IOM are all part of the
corporate entity of the Academy. All their grant documents and
contracts are signed by the Academy and all employees, regardless of
whether their work is for the IOM or the NRC, are paid by the Academy.
As subgroups of the Academy, the NRC, NAE, and IOM are bound by the
same laws that bind the Academy. It is logical that committees
created by internal, unincorporated subgroups of the Academy would
also be committees created by the Academy and therefore excluded from
the definition of advisory committee.[10]
In addition, the posture in which the amendments were enacted lends
support to the position that Congress intended the exclusion to apply
to the committees formed by the Academy's subgroups. The amendments
were proposed in response to Animal Legal Defense Fund, the court
decision that made FACA applicable to an NRC committee. Although the
litigation involved an NRC committee, the court's decision focused on
the Academy, not on the NRC. It is reasonable to assume that since
the amendments were intended to overrule the court decision, the
amendments would apply to the NRC.
The legislative history, though sparse, supports this statutory
interpretation.[11] In a hearing on FACA and proposed amendments to
FACA on November 5, 1997,[12] it is apparent from the hearing
transcript that the chair of the committee presumed that NRC
committees are Academy committees since all the discussion at the
hearing was addressed to the Academy and the amendments were being
considered to overrule the court decision noted above.
On November 9, the day the House passed the bill, the floor manager
and sponsor of the bill, Steven Horn, noted that the Academy
frequently sets up committees that provide independent advice to the
Government: "90 per cent of these reports are requested by government
agencies and/or legislative committees of Congress."[13] When he
refers to "90 per cent" of the reports from the advisory committees,
he cannot be referring solely to the Academy, because it has only six
committees and they do not produce "90 per cent" of the reports. His
statistics must include the NRC and IOM because together they produce
more than 90 per cent of the reports from the committees. As noted
above, the NRC has the most committees of the entities within the
Academy and it is not likely that Congress passed the 1997 amendments
for the Academy's six committees and ignored the over 500 committees
of the NRC, where the bulk of the Academy's work is carried out.
Congress is also aware that the Academy works through its subgroups
for most of its work. On occasion, public laws even specify which
committee of the Academy should be approached to do a study. For
example, one statute states, "The Secretary shall commission the
National Academy of Sciences, working through the Board on Agriculture
of the National Research Council, to conduct a study" of the delivery
systems used to provide farmers with veterinary services.
7 U.S.C. sec. 3193 (1994).
Conclusion
The interrelationship of the Academy and its subgroups and the
legislative history of the 1997 amendments support our view that the
1997 amendments do apply to the subgroups of the Academy. Thus,
committees formed by the NRC, NAE and IOM are "created" by the
Academy, and they must comply with section 15 requirements added by
the 1997 amendments. Federal agencies may not use the advice or
recommendations of the Academy and its constituent entities unless the
requirements of section 15 are met.
Question 2: Does the Freedom of Information Act apply to the National
Academy of Sciences, the National Research Council, the National
Academy of Engineering, the Institute of Medicine, or the Academy
advisory panels that conduct federally funded studies?
No, the Academy, NRC, NAE, IOM and their advisory panels are not
subject to the Freedom of Information Act (FOIA). 5 U.S.C. sec. 552
(1994).
FOIA applies only to entities that meet the definition of "agency"
under FOIA:
For purposes of this section [section 552], the term 'agency'
as defined in section 551(l) of this title includes any
executive department, military department, Government
corporation, Government controlled corporation, or other
establishment in the executive branch of the Government
(including the Executive Office of the President), or any
independent regulatory agency.
5 U.S.C. sec. 552(f)(1)(Supp. II 1996). One court has already addressed
the question of whether FOIA is applicable to the Academy. In
Lombardo v. Handler, 397 F. Supp. 792, 801 (D.D.C. 1975), aff'd
without opinion, 546 F.2d 1043 (D.C. Cir. 1976), cert. denied, 431
U.S. 932 (1977), the U.S. District Court for the District of Columbia
held that the Academy is not an agency under FOIA. The court found
that the Academy is clearly not an establishment in the executive
branch of the government; it neither functions under the President nor
was it created by the President. Lombardo, 397 F. Supp. at 802.
Although the Academy was chartered by the Congress, it is not a
government corporation because it is not a "wholly government-owned
enterprise." The court also stated that the Academy is not a
government-controlled corporation because no significant control by
government has been shown. Finally, the court pointed out that the
Academy is not an authority of the government and does not perform
governmental functions like an administrative agency. Lombardo, 397
F. Supp. at 802.
Although the Academy was established by Acts of Congress, 36 U.S.C. sec.
251-254 (1994), the Academy does not possess characteristics typical
of an agency under FOIA. It has no authority for rule making,
adjudication, or licensing. It has no power to implement its own
advice or impose sanctions. For these reasons, the Academy is not a
"center of gravity in the exercise of administrative power," Lombardo,
397 F. Supp. at 795, and cannot be an agency.
As the Academy points out in its legal opinion, additional support
that FOIA is inapplicable to the Academy can be found by the presence
of section 15(b)(3) - (5) added by the 1997 amendments which requires
the Academy and its advisory committees to make their data gathering
meetings public, disclose written materials submitted to the
committees and make brief summaries of meetings and Academy reports
available. 5 U.S.C.A. App. 2 sec. 15 (1996 & Supp. 1998). These
provisions would be unnecessary if the Academy were an "agency"
subject to the requirements of FOIA. In other words, these written
materials, brief summaries and Academy reports would already be
"agency records" subject to FOIA and have to be disclosed as materials
under the control of the Academy that had been created or obtained by
the Academy.
The holding of Lombardo with regard to the Academy and FOIA has not
been overturned or revisited.[14] Thus, the Academy is not subject to
FOIA. Although Lombardo did not directly address the status of the
NAE, NRC and IOM, or their advisory panels conducting federally funded
studies, the court's rationale is equally applicable. None of these
entities is an executive department, a military department, a
government corporation, a government-controlled corporation, or other
establishment in the executive branch of the government. None are
incorporated. None are independent regulatory agencies. None of the
advisory panels possess the ability to act independently. None of
these entities can be considered an agency for the purposes of FOIA.
Question 3: Are there statutory or contractual barriers to the
release of underlying data by the Academy and its subgroups to the
public, Congress, or federal agencies?
Other than criminal statutes which prohibit the disclosure of
classified information or information related to national defense,
federal laws generally do not directly bar private entities like the
Academy and its subgroups from releasing underlying data to the
public, Congress or federal agencies. However, contractual provisions
with government agencies, private entities or individuals could
preclude the Academy's release of underlying data, and section 15(b)
added by the 1997 amendments could also limit the Academy's ability to
release documents if their release would disclose matters exempt under
FOIA.
With the exception of criminal statutes related to national security,
federal non-disclosure laws generally do not directly bar private
entities like the Academy from releasing information because they
generally apply only to federal agencies and/or federal employees.[15]
Federal employees, for example, are prohibited by statute from
disclosing any information coming to them in the course of their
employment relating to such things as trade secrets, confidential
statistical data, or income returns to anyone not authorized by law.
The penalty for disclosure could be a fine, prison and/or dismissal
from employment. 18 U.S.C. sec. 1905 (Supp. II 1996). This law does not
apply to private individuals or entities. However, many criminal
statutes relating to national security type matters apply to
individuals, whether they are employed by the government or not. Thus
Academy employees or members of Academy committees may be subject to
criminal statutes if they disclose national security information to
unauthorized persons. 18 U.S.C. sec. 798 (1994 & Supp. II 1996).
Contracts with federal agencies frequently include provisions in which
the Academy agrees not to disclose information covered by federal
non-disclosure laws such as trade secrets, personally identifiable
records, or national security information. When the Academy is
entering into a contract with an agency that may result in the release
of classified information to Academy employees, the contract will have
a provision whereby the Academy agrees to comply with special
procedures to protect classified information from disclosure and to
adhere to the classification determination made by the agency with
regard to national security information.[16]
Contract provisions with private entities may also bar the Academy
from disclosing certain types of information. This could include
personal information like that found in medical records or proprietary
commercial information received directly from industry, such as
commercial or financial information provided by a commercial test
publisher.
Another source of possible restrictions to the Academy's releasing
information is found in section 15 added by the 1997 amendments. It
requires that data gathering meetings be open unless open meetings
"would disclose matters described" in the exemptions to FOIA.[17]
Similarly, written materials presented to the Academy committee,
summaries of closed meetings, and final reports must also be made
available to the public unless the Academy determines that releasing
the information "would disclose matters described" in the exemptions
to FOIA. Thus, if release of documents would disclose matters
described in the exemptions, the Academy must keep them confidential
to comply with section 15.
According to the Academy, the FOIA exemptions that would most
frequently be invoked would be exemption (b)(1) relating to national
security information, (b)(3) relating to information exempted by
another statute, and (b)(4) relating to trade secrets or confidential
commercial or financial information. The Academy has indicated that
it anticipates that trade secrets and commercial or financial
information will be the most commonly invoked rationale for
withholding information presented to Academy committees from the
public.
Under Academy policy and NRC guidelines, classified information, trade
secrets, and information of a personal nature are to be kept
privileged. Additional classes of information under the Academy's
policy that may be deemed privileged include information subject to
statutory restriction on access and disclosure, draft manuscripts,
original data or other information for which the institution
recognized a right of first publication by the author, and information
that by contractual stipulation or prior agreement is received on a
privileged basis. As a private entity, the Academy may make its own
disclosure policies. However, the Academy has stated that to the
extent that an activity is subject to the new section 15 added by the
1997 amendments, the policy and guidelines are superseded and
underlying data will be made available in accordance with section 15.
We hope you find the analysis of these issues useful. If we can be of
further assistance, let us know.
Sincerely,
Robert P. Murphy
General Counsel
Enclosures
1. See Federal Research: The National Academy of Sciences and the
Federal Advisory Committee Act (GAO/RCED-99-17, Nov. 13, 1998).
2. Lombardo v. Handler, 397 F. Supp. 792 (D.C.C. 1975), aff'd without
opinion, 546 F.2d 1043 (D.C. Cir. 1976), cert. denied, 431 U.S. 932
(1977). In this same case, the court also held that the Freedom of
Information Act (FOIA) definition of "agency" does not include the
Academy, and therefore the Academy is not subject to FOIA. This
holding, which has not been overturned, will be discussed further
under question 2 below.
3. The full text of section 15 is set out in the enclosure.
4. The section 15 requirements for Academy committees are narrower
than the rules FACA committees must follow. FACA committees are not
independent from agency control and must inter alia file charters,
have a federal employee attend all meetings, keep detailed minutes of
meetings, and open deliberative meetings to the public.
5. Exemptions to FOIA are found at 5 U.S.C. sec. 552(b)(1994 & Supp. II
1996).
6. As was stated above, Federal agencies are precluded from using
advice or recommendations of the Academy and its committees unless
they comply with section 15 of FACA; such compliance, however, does
not make them FACA advisory committees.
7. The National Academy of Engineering Fund (NAEF), which holds assets
for the benefit of the NAE, is incorporated as a separate nonprofit
corporation. The NAE council is responsible for control of all funds
administered by the NAEF. The NAEF issues its own financial report.
Expenses of NAE incurred by the NRC and Academy are reimbursed by the
NAEF.
8. The Academy's six committees and NAE's eight committees are not
subject to the governing board and their work tends to be different in
nature from the work performed by the NRC committees. For example,
one joint committee (Academy, NAE, and IOM) meets with scientific
leaders in other countries to promote human rights; another works on
developing a series on science that could run as public service
announcements; a third develops conferences and programs.
9. Committees created by the National Academy of Public Administration
must follow some, but not all, of the section 15 requirements.
10. By way of analogy, the interconnectedness of the Academy and its
subgroups include many of the factors (common directors, common
employees, unified administrative control, common offices, etc.) used
to analyze whether a group of corporations constitutes a "single
business enterprise" such that a court might extend liability to all
of the affiliated organizations. See 1 William Meade Fletcher et al.,
Fletcher Cyclopedia of the Law of Private Corporations sec. 43 (perm. ed.
rev. vol. 1990 & Supp. 1998).
11. The bill, H.R. 2977, was introduced and passed the House of
Representatives the same day, November 9, 1997. Four days later the
House-passed bill was introduced and passed by the Senate. No
committee reports accompanied the legislation.
12. Although the hearing preceded the date that H.R. 2977 (the bill
that became law) was introduced, the remarks of Chairman Steven Horn
and other witnesses indicate that some of the provisions found in H.R.
2977 were under discussion, especially "openness" changes in the way
the Academy conducts its studies. See, e.g., Federal Advisory
Committee Act: Hearing Before the Subcomm. on Government, Management,
Information, and Technology of the House Comm. on Government Reform
and Oversight, 105th Cong. 6, 8-9, 58-59, 66-67, 72 (1997).
13. 143 Cong. Rec. H10578, 10580 (daily ed. Nov. 9, 1997) (statement
of Rep. Horn).
14. Recent cases have followed the rationale in Lombardo. For
example, in Dong v. Smithsonian Institution, 125 F.3d 877, 882 (D.C.
Cir. 1997), cert. denied, ___U.S. ___, 118 S. Ct. 2311 (1998), the
court held that the Smithsonian is not an agency subject to the
Privacy Act (which uses the same definition of "agency" as FOIA). The
court found that the Smithsonian does not have the amount of
"substantial independent authority" needed to be considered an agency.
The American National Red Cross is also not an "agency" for purposes
of FOIA. Irwin Memorial Blood Bank of San Francisco Medical Soc. v.
American National Red Cross, 640 F.2d 1051 (9th Cir. 1981).
15. It should be noted that the Academy and its constituent entities
are private and thus not required to release data to the public, the
Congress or to federal agencies. However, as noted above, federal
agencies may not use the advice or a recommendation provided by the
Academy that was developed by the use of a committee unless the
requirements of section 15 are met. 5 U.S.C.A. App. 2 sec. 15.
16. For example, a contract between the Academy and the Department of
Defense that may result in the release of classified information to
Academy employees will contain a special agreement that the contractor
(the Academy) will comply with DOD 5220.22-M, National Industrial
Security Program Operating Manual,
January 1995 (NISPOM) under which the Academy agrees to protect
classified information provided by the U.S. Government from
disclosure.
17. Exemptions to FOIA are found at 5 U.S.C. 552(b)(1994 & Supp. II
1996).