principles of separation of powers by usurping the legislative function vested in Congress. In any event, that "super agency" must, at a minimum, abide by the same statutory processes that apply to all other agencies. Indeed, there is no question that OMB itself is subject to both the APA and the FOIA. Furthermore, there can be no legitimate complaint that applying the FOIA to the Task Force and the Council will interfere with the "Executive Privilege." That privilege is squarely protected by Exemption 5 of the Act, which applies to "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552 (b) (5). The Supreme Court has held that the exemption protects the "executive privilege," including the advice, recommendations, and opinions which are part of the deliberative, consultative, decision-making processes of government. NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975). As the Court held in that case, the purpose of the privilege is to prevent harm to the quality of agency decisions, by encouraging open, frank discussions on policy matters between and among agency personnel. In recent years, the Exemption has been broadly construed, to the point that the Court of Appeals for the District of Columbia Circuit has held that it allows the government to withhold information which would reveal where in the regulatory review process a particular regulation is or has been. Wolfe y Department of HHS, 839 F.2d 768 (D.C. Cir. 1988) (en banc) (information from agency's "Regulations Log" that would reveal when regulation was sent to OMB for review and whether regulation had been sent back to agency may be withheld under Exemption 5). In light of the broad coverage of this Exemption, the Council cannot credibly contend that subjecting it to the disclosure requirements of the FOIA will transgress the Vice President's or President's executive privilege. On the other hand, in keeping with the purpose of the Exemption to encourage frank and candid deliberations among agency personnel the Supreme Court has distinguished between "materials reflecting deliberative or policy-making processes" which may be withheld under the Exemption, and "purely factual, investigative matters," which may not. · EPA v. Mink, 410 U.S. 73 (1973). In addition, since the Exemption, and the executive privilege which it protects, extends only to agency personnel, it cannot be relied on as the basis for withholding information that has been supplied by or shared with groups or individuals outside the government e.g., industry representatives, which, as Allan Hubbard, the Council's Executive Director, recently admitted to a journalist, "come to [the Council]" when "they feel like they are being treated unfairly." See "Quayle's Quiet Coup," National Journal (July 6, 1991). This tenet of the Exemption may explain the real reason the Council, and the Task Force before it, does not want to be subject to the FOIA: subjecting the Council to the FOIA would allow the public to document the enormous, unfair influence that regulated industries have on the Council, and, in turn, on the final outcome of regulatory decisions. Allowing the public to have access to Council records would also permit groups that are adversely affected by a final agency decision to prove to a reviewing court that the final decision was based on factual evidence that had already been rejected by the agency's own scientists or other experts a syndrome we know to be common, but often have trouble proving, because of the secrecy surrounding the Council's operations. - It is this kind of public accountability that the Council seeks to ward off by crying "separation of powers" and "executive privilege" as the bases for denying that it must comply with the FOIA, or otherwise permit public scrutiny of its actions. Until the Congress enacts legislation to curb the regulatory review authority of OMB and the Council on Competitiveness and to compel them to operate under the light of public scrutiny, private enforcement of the FOIA may be the only way to ensure some degree of public accountability on the part of these entities. I hope that Meyer v. Bush will help pave the way for that much needed accountability. EXECUTIVE OFFICE OF THE PRESIDENT STATEMENT JAMES B. MACRAE, JR. ACTING ADMINISTRATOR AND DEPUTY ADMINISTRATOR OFFICE OF INFORMATION AND REGULATORY AFFAIRS BEFORE THE COMMITTEE ON GOVERNMENTAL AFFAIRS NOVEMBER 15, 1991 Mr. Chairman, I am pleased to be here today. In your letter of invitation, you asked us to testify on S. 1942, a bill you introduced just recently on November 7, 1991. ... That bill would require "any agency, or other establishment in the executive branch of the Federal Government established by the President, which engages, in whole or in part in regulatory review" to "establish procedures to provide public access to information concerning each agency rulemaking activity under its review." That bill would apply to every office in the White House and the Executive Office of the President (EXOP), as well as the Council on Competitiveness, and such cabinet-level bodies as the Domestic Policy Council and the Economic Policy Council. The bill sets forth a variety of detailed disclosure provisions, requiring the "reviewing entity" to disclose "within 5 working days" (1) "a summary, including date, participants, and substance, of all oral communications relating to the agency rulemaking activity," (2) all written communications between the reviewers and the agency, (3) all written communications between -2 the reviewers and the public, and (4) a "written explanation of any significant review action taken by the reviewing entity." As drafted, the bill would require contemporaneous or immediate disclosure of written and oral communications regarding regulations by virtually all White House Office staff, including the Chief of Staff, the Cabinet Secretary, White House Counsel, Intergovernmental Affairs, and the Economic and Domestic Policy staff. It would also extend to the members and staff of most EXOP agencies, such as CEA, CEQ, NSC, USTR, OSTP, and the office of National Drug Control Policy, as well as all of OMB, including budget, management, OIRA, and OFPP. Even with the exemption for "oral communications" with the President, the Vice President, cabinet secretaries, the OMB Director, and the EPA Administrator, who are formal members of the various cabinet councils, the disclosure requirements would apply to all written communications by these officials (including cabinet briefing books) and to all oral and written communications by the other individuals who attend council meetings, e.g., Deputy Secretaries and Secretarial staff, and the heads of most regulatory agencies, e.g., OSHA, FDA, and FAA; and to inter-agency discussions by their staffs in preparation for such meetings. The disclosure requirements would also apply to any subgroup of agencies, or even the regulatory agency itself, if directed by one of these reviewing entities to conduct its own regulatory review. |