where's the sunshine?

After years of quietly circumventing the so-called Sunshine Act, a 1976 law mandating open meetings, federal regulators are growing bolder.

Take Marc Lincoln Marks, a Clinton appointee to the Federal Mine Safety and Health Review Commission, for example. Marks decided early in 1995 that candid discussions could not occur at open meetings, so he stopped going. Instead, he circulates memos and holds permissible one-on-one private sessions with the other commissioners.

 Similar strategies, including deputizing aides to meet in a commissioner's stead, are employed at the several dozen regulatory agencies most affected by the Sunshine Act. Commissioners say they are fearful that voicing preliminary, argumentative, or exaggerated views could be embarrassing or confusing to the public, or upsetting to financial markets.

 Securities and Exchange Commissioner Steve Wallman was so convinced that permitting more private meetings would improve communication among commissioners, and thus improve policy-making, that he persuaded the Administrative Conference of the United States (ACUS), a tiny government body dedicated to improving government processes, to create a special committee to examine his contentions. Just before Congress put ACUS out of business last fall, the committee endorsed a number of them.

"Generally, true collective decision-making does not occur at agency public meetings," it concluded. It called for a five- to seven-year "pilot program" in which Congress would let agencies meet privately without advance notice, provided that they released detailed minutes within five days and took most final actions in open session.

"I'm not happy about it," says Lucy Dalglish, former chair of the National Freedom of Information Committee of the Society of Professional Journalists. "What they missed is the lack of effort among people in the federal government to make the Sunshine Act work."

Even at agencies apparently prospering in the sunshine, such as the Consumer Product Safety Commission, there exists latent desire for change. Initial inquiries to a CPSC public affairs official elicited pride in the agency's "goldfish bowl" policies, but a subsequent statement by the chairwoman, Ann Brown, concluded that the act limits open discussion -- "a fact which can sometimes impede good decision
 making."

Many reporters who cover regulatory agencies say that most open meetings now resemble scripted scenes. Prepared statements precede planned motions and predictable votes. Some say they go mostly for the occasional candid moments or flashes of debate that illuminate official thinking, or for staff briefings after a meeting is over.

Sunshine Act critics argue that if the act is being ignored, and can't be enforced, it might as well be changed. Alan Morrison, for one, a Ralph Nader associate who has litigated many open-government cases and served on the ACUS panel, has concluded that the act is "a charade," and he concurs in the panel's recommendations.

Absent an open spirit among officials, there seem to be few ways to enforce the act, except perhaps by congressional oversight and news media attention. Ellen E. Smith, publisher of Mine Safety and Health News, has followed the story, filed requests for MSHR commissioner Marks's memos, and threatened a lawsuit. She has also drawn attention to the views of former MSHR chairwoman Arlene Holen, who told Smith: "Openness promotes accountability and responsibility. Open, rational discussion inhibits improper wheeling and dealing, and the consideration of matters that are not on the record or consideration of politics."

The rekindled debate about sunsetting the Sunshine Act has barely reached Capitol Hill, but the House Subcommittee on Government Management, Information, and Technology was expected to look at the act this spring as part of a series of hearings on federal information policies.

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