28 C.F.R. Subpart F—Public Observation of Parole Commission Meetings
Title 28 - Judicial Administration
Source: 42 FR 14713, Mar. 16, 1977, unless otherwise noted.
As used in this part: (a) The term Commission means the U.S. Parole Commision and any subdivision thereof authorized to act on its behalf. (b) The term meeting refers to the deliberations of at least the number of Commissioners required to take action on behalf of the Commission where such deliberations determine or result in the joint conduct or disposition of official Commission business. (c) Specifically included in the term meeting are; (1) Meetings of the Commission required to be held by 18 U.S.C. 4203(a); (2) Special meetings of the Commission called pursuant to 18 U.S.C. 4204(a)(1); (3) Meetings of the National Commissioners in original jurisdiction cases pursuant to 28 CFR 2.17(a); (4) Meetings of the entire Commission to determine original jurisdiction appeal cases pursuant to 28 CFR 2.27; and (5) Meetings of the National Appeals Board pursuant to 28 CFR 2.26. (6) Meetings of the Commission to conduct a hearing on the record in conjunction with applications for certificates of exemption under section 504(a) of the Labor-Management Reporting and Disclosure Act of 1959, and section 411 of the Employee Retirement Income Security Act of 1974 (28 CFR 4.1–17 and 28 CFR 4a.1–17).1 1 Part 4a was removed at 44 FR 6890, Feb. 2, 1979. (d) Specifically excluded from the term meeting are: (1) Determination made through independent voting of the Commissioners without the joint deliberation of the number of Commissioners required to take such action, pursuant to §16.201; (2) Original jurisdiction cases determined by sequential vote pursuant to 28 CFR 2.17; (3) Cases determined by sequential vote pursuant to 28 CFR 2.24 and 2.25; (4) National Appeals Board cases determined by sequential vote pursuant to 28 CFR 2.26; (5) Meetings of special committees of Commissioners not constituting a quorum of the Commission, which may be established by the Chairman to report and make recommendations to the Commission or the Chairman on any matter. (6) Determinations required or permitted by these regulations to open or close a meeting, or to withhold or disclose documents or information pertaining to a meeting. (e) All other terms used in this part shall be deemed to have the same meaning as identical terms used in chapter I, part 2 of this title. [42 FR 14713, Mar. 16, 1977, as amended at 43 FR 4978, Feb. 7, 1978] (a) Whenever the Commission's Chairman so directs, any matter which (1) does not appear to require joint deliberation among the members of the Commission, or (2) by reason of its urgency, cannot be scheduled for consideration at a Commission meeting, may be disposed of by presentation of the matter separately to each of the members of the Commission. After consideration of the matter each Commission member shall report his vote to the Chairman. (b) Whenever any member of the Commission so requests, any matter presented to the Commissioners for disposition pursuant to paragraph (a) of this section shall be withdrawn and scheduled instead for consideration at a Commission meeting. (c) The provisions of §16.206(a) of these rules shall apply in the case of any Commission determination made pursuant to this section. (a) Every portion of every meeting of the Commission shall be open to public observation unless closed to the public pursuant to the provisions of §16.203 (Formal Procedure) or §16.205 (Informal Procedure). (b) The attendance of any member of the public is conditioned upon the orderly demeanor of such person during the conduct of Commission business. The public shall be permitted to observe and to take notes, but unless prior permission is granted by the Commission, shall not be permitted to record or photograph by means of any mechanical or electronic device any portion of meetings which are open to the public. (c) The Commission shall be responsible for arranging a suitable site for each open Commission meeting so that ample seating, visibility, and acoustics are provided to the public and ample security measures are employed for the protection of Commissioners and Staff. The Commission shall be responsible for recording or developing the minutes of Commission meetings. (d) Public notice of open meetings shall be given as prescribed in §16.204(a), and a record of votes kept pursuant to §16.206(a). (a) The Commission, by majority vote, may close to public observation any meeting or portion thereof, and withhold from the public announcement concerning such meeting any information, if public observation or the furnishing of such information is likely to: (1) Disclose matters: (i) Specifically authorized under criteria established by an executive order to be kept secret in the interests of national defense or foreign policy and (ii) In fact properly classified pursuant to such executive order; (2) Relate solely to the internal personnel rules and practices of the Commission or any agency of the Government of the United States; (3) Disclose matters specifically exempted from disclosure by statute (other than 5 U.S.C. 552, or the Federal Rules of Criminal Procedure): Provided, That such statute or rule (i) requires that the matters be withheld in such a manner as to leave no discretion on the issue, or (ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld, including exempted material under the Privacy Act of 1974 or the Commission's Alternate Means of Access under the Privacy Act of 1974, as set forth at 28 CFR 16.85; (4) Disclose a trade secret or commercial or financial information obtained from any person, corporation, business, labor or pension organization, which is privileged or obtained upon a promise of confidentiality, including information concerning the financial condition or funding of labor or pension organizations, or the financial condition of any individual, in conjunction with applications for exemption under 29 U.S.C. 504 and 1111, and information concerning income, assets and liabilities of inmates, and persons on supervision; (5) Involve accusing any person of a crime or formally censuring any person; (6) Disclose information of a personal nature, where disclosure would constitute a clearly unwarranted invasion of personal privacy; (7) Disclose an investigatory record compiled for law enforcement purposes, or information derived from such a record, which describes the criminal history or associations of any person under the Commission's jurisdiction or which describes the involvement of any person in the commission of a crime, but only to the extent that the production of such records or information would: (i) Interfere with enforcement proceedings; (ii) Deprive a person of a right to a fair trail or an impartial adjudication; (iii) Constitute an unwarranted invasion of personal privacy; (iv) Disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source; (v) Disclose investigative techniques and procedures, or (vi) Endanger the life or physical safety of law enforcement personnel; (8) Disclose information, the premature disclosure of which would be likely to significantly frustrate implementation of proposed Commission action except where (i) The Commission has already publicly disclosed the content or nature of its proposed action or (ii) The Commission is required by law to make such disclosure on its own initiative prior to taking final Commission action on such proposal; (9) Specifically concern the Commission's issuance of subpoena or participation in a civil action or proceeding; or (10) Specifically concern the initiation, conduct, or disposition of a particular case of formal adjudication pursuant to the procedures in 5 U.S.C. 554, or of any case involving a determination on the record after opportunity for a hearing. Included under the above terms are: (i) Record review hearings following opportunity for an in-person hearing pursuant to the procedures of 28 CFR 4.1 through 4.17 and 28 CFR 4a.1 through 4a.171 1 Part 4a was removed at 44 FR 6890, Feb. 2, 1979. (ii) The initiation, conduct, or disposition by the Commission of any matter pursuant to the procedures of 28 CFR 2.1 through 2.58 (parole, release, supervision, and recommitment of prisoners, youth offenders, and juvenile delinquents). (b) Public interest provision. Notwithstanding the exemptions at paragraphs (a)(1) through (a)(10) of this section, the Commission may conduct a meeting or portion of a meeting in public when the Commission determines, in its discretion, that the public interest in an open meeting clearly outweighs the need for confidentiality. (c) Nonpublic matter in announcements. The Commission may delete from any announcement or notice required in these regulations information the disclosure of which would be likely to have any of the consequences described in paragraphs (a)(1) through (a)(10) of this section, including the name of any individual considered by the Commission in any case of formal or informal adjudication. (d) Voting and certification. (1) A separate recorded vote of the Commission shall be taken with respect to each meeting or portion thereof which is proposed to be closed, and with respect to any information which is proposed to be withheld pursuant to this section. Voting by proxy shall not be permitted. In the alternative, the Commission may, by a single majority vote, close to public observation a series of meetings, or portion(s) thereof or withhold information concerning such series of meetings, provided that: (i) Each meeting in such series involves the same particular matters, and (ii) Each meeting is scheduled to be held no more than thirty days after the initial meeting in the series. (2) Upon the request of any Commissioner, the Commission shall make a determination as to closure pursuant to this subsection if any person whose interests may be directly affected by a portion of a meeting requests the Commission to close such portion or portions to the public observation for any of the grounds specified in paragraph (a) (5), (6) or (7) of this section. (3) The determination to close any meeting to public observation pursuant to this section shall be made at least one week prior to the meeting or the first of a series of meetings as the case may be. If a majority of the Commissioners determines by recorded vote that agency business requires the meeting to take place at any earlier date, the closure determination and announcement thereof shall be made at the earliest practicable time. Within one day of any vote taken on whether to close a meeting under this section, the Commission shall make available to the public a written record reflecting the vote of each Commissioner on the question, including a full written explanation of its action in closing the meeting, portion(s) thereof, or series of meetings, together with a list of all persons expected to attend the meeting(s) or portion(s) thereof and their affiliation, subject to the provisions of paragraph (c) of this section. (4) For every meeting or series of meetings closed pursuant to this section, the General Counsel of the Parole Commission shall publicly certify that, in Counsel's opinion, the meeting may be closed to the public and shall state each relevant exemptive provision. (a) Requirements. Every open meeting and meeting closed pursuant to §16.203 shall be preceded by a public announcement posted before the main entrance to the Chairman's Office at the Commission's headquarters, 5550 Friendship Boulevard, Chevy Chase, Maryland 20815–7286, and, in the case of a meeting held elsewhere, in a prominent place at the location in which the meeting will be held. Such announcement shall be transmitted to the (1) A brief description of the subject matter to be discussed; (2) The date, place, and approximate time of the meeting; (3) Whether the meeting will be open or closed to public observation; and (4) The name and telephone number of the official designated to respond to requests for information concerning the meeting. See §16.205(d) for the notice requirement applicable to meetings closed pursuant to that section. (b) Time of notice. The announcement required by this section shall be released to the public at least one week prior to the meeting announced therein except where a majority of the members of the Commission determines by a recorded vote that Commission business requires earlier consideration. In the event of such a determination, the announcement shall be made at the earliest practicable time. (c) Amendments to notice. The time or place of a meeting may be changed following the announcement only if the Commission publicly announces such change at the earliest practicable time. The subject matter of a meeting, or determination of the Commission to open or close a meeting, or portion of a meeting, to the public may be changed following the announcement only if: (1) A majority of the entire membership of the Commission determines by a recorded vote that Commission business so requires and that no earlier announcement of the change was possible, and (2) The Commission publicly announces such change and the vote of each member upon such change at the earliest practicable time: Provided, That individual items which have been announced for Commission consideration at a closed meeting may be deleted without notice. [42 FR 14713, Mar. 16, 1977 as amended by Order No. 960–81, 46 FR 52357, Oct. 27, 1981] (a) Finding. Based upon a review of the meetings of the U.S. Parole Commission since the effective date of the Parole Commission and Reorganization Act (May 14, 1976), the regulations issued pursuant thereto (28 CFR part 2) the experience of the U.S. Board of Parole, and the regulations pertaining to the Commission's authority under 29 U.S.C. 504 and 29 U.S.C. 1111 (28 CFR parts 4 and 4a), the Commission finds that the majority of its meetings may properly be closed to the public pursuant to 5 U.S.C. 552 (d)(4) and (c)(10). The major part of normal Commission business lies in the adjudication of individual parole cases, all of which proceedings commence with an initial parole or revocation hearing and are determined on the record thereof. Original jurisdiction cases are decided at bi-monthly meetings of the National Commissioners (28 CFR 2.17) and by the entire Commission in conjunction with each business meeting of the Commission (held at least quarterly) (28 CFR 2.27). The National Appeals Board normally decides cases by sequential vote on a daily basis, but may meet from time to time for joint deliberations. In the period from October, 1975 through September, 1976, the National Appeals Board made 2,072 Appellate decisions. Finally, over the last two years the Commission determined eleven cases under the Labor and Pension Acts, which are proceedings pursuant to 5 U.S.C. 554. The only meetings of the Commission not of an adjudicative nature involving the most sensitive inquiry into the personal background and behavior of the individual concerned, or involving sensitive financial information concerning the parties before the Commission, are the normal business meetings of the Commission, which are held at least quarterly. (b) Meetings to which applicable. The following types of meetings may be closed in the event that a majority of the Commissioners present at the meeting, and authorized to act on behalf of the Commission, votes by recorded vote at the beginning of each meeting or portion thereof, to close the meeting or portions thereof: (1) Original jurisdiction initial and appellate case deliberations conducted pursuant to 28 CFR 2.17 and 2.27; (2) National Appeals Board deliberations pursuant to 28 CFR 2.26; (3) Meetings of the Commission to conduct a hearing on the record regarding applications for certificates of exemption pursuant to the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. 504, and the Employee Retirement Income Security Act of 1974, 29 U.S.C. 1111 (28 CFR 4.1–17 and 29 CFR 4a.1–17).1 1 Part 4a was removed at 44 FR 6890, Feb. 2, 1979. (c) Written record of action to close meeting. In the case of a meeting or portion of a meeting closed pursuant to this section, the Commission shall make available to the public as soon as practicable: (1) A written record reflecting the vote of each member of the Commission to close the meeting; and (2) A certification by the Commission's General Counsel to the effect that in Counsel's opinion, the meeting may be closed to the public, which certification shall state each relevant exemptive provision. (d) Public notice. In the case of meetings closed pursuant to this section the Commission shall make a public announcement of the subject matter to be considered, and the date, place, and time of the meeting. The announcement described herein shall be released to the public at the earliest practicable time. (a) In the case of any Commission meeting, whether open or closed, the Commission shall maintain and make available for public inspection a record of the final vote of each member on rules, statements of policy, and interpretations adopted by it: 18 U.S.C. 4203(d). (b) The Commission shall maintain a complete transcript or electronic recording adequate to record fully the proceedings of each meeting, or portion of a meeting, closed to the public pursuant to §16.203. In the case of a meeting, or portion of a meeting, closed to the public pursuant to §16.205 of these regulations, the Commission may maintain either the transcript or recording described above, or a set of minutes unless a recording is required by title 18 U.S.C. 4208(f). The minutes required by this section shall fully and clearly describe all matters discussed and shall provide a full and accurate summary of any actions taken, and the reasons therefor, including a description of each of the views expressed on any item and the record of any rollcall vote (reflecting the vote of each Commissioner on the question). All documents considered in connection with any action shall be identified in such minutes. (c) The Commission shall retain a copy of every certification executed by the General Counsel's Office pursuant to these regulations, together with a statement from the presiding officer of the meeting, or portion of a meeting to which the certification applies, setting forth the time and place of the meeting, and the persons present. (d) Nothing herein shall affect any other provision in Commission procedures or regulations requiring the preparation and maintenance of a record of all official actions of the Commission. (a) Public access to records. Within a reasonable time after any closed meeting, the Commission shall make available to the public, in the Commission's Public Reading Room located at 5550 Friendship Boulevard, Chevy Chase, Maryland 20815–7286, the transcript, electronic recording, or minutes of the discussion of any item on the agenda, or of any item of the testimony of any witness received at such meeting, maintained hereunder, except for such item or items of such discussion or testimony which contain information exempt under any provision of the Government in the Sunshine Act (Pub. L. 94–409), or of any amendment thereto. Copies of nonexempt transcripts, or minutes, or a transcription of such recording disclosing the identity of each speaker, shall be furnished to any person at the actual cost of duplication or transcription. (b) Access to documents identified or discussed in any Commission meeting, open or closed, shall be governed by Department of Justice regulations at this part 16, subparts C and D. The Commission reserves the right to invoke statutory exemptions to disclosure of such documents under 5 U.S.C. 552 and 552a, and applicable regulations. The exemptions provided in 5 U.S.C. 552b(c) shall apply to any request made pursuant to 5 U.S.C. 552 or 552a to copy and inspect any transcripts, recordings or minutes prepared or maintained pursuant hereto. (c) Retention of records. The Commission shall maintain a complete verbatim copy of the transcript, or a complete copy of the minutes, or a complete electronic recording of each meeting, or portion of a meeting, closed to the public, for a period of at least two years after such meeting, or until one year after the conclusion of any Commission proceeding with respect to which the meeting or portion thereof was held, whichever occurs later. [42 FR 14713, Mar. 16, 1977, as amended by Order No. 960–81, 46 FR 52357, Oct. 27, 1981] The Commission shall report annually to Congress regarding its compliance with Sunshine Act requirements, including a tabulation of the total number of meetings open to the public, the total number of meetings closed to the public, the reasons for closing such meetings, and a description of any litigation brought against the Commission under this section, including any costs assessed against the Commission in such litigation and whether or not paid.
Title 28: Judicial Administration
PART 16—PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION
Subpart F—Public Observation of Parole Commission Meetings
§ 16.200 Definitions.
§ 16.201 Voting by the Commissioners without joint deliberation.
§ 16.202 Open meetings.
§ 16.203 Closed meetings—Formal procedure.
§ 16.204 Public notice.
§ 16.205 Closed meetings—Informal procedures.
§ 16.206 Transcripts, minutes, and miscellaneous documents concerning Commission meetings.
§ 16.207 Public access to nonexempt transcripts and minutes of closed Commission meetings—Documents used at meetings—Record retention.
§ 16.208 Annual report.
