41 C.F.R. Appendix A to Subpart D of Part 102–3—Key Points and Principles
Title 41 - Public Contracts and Property Management
This appendix provides additional guidance in the form of answers to frequently asked questions and identifies key points and principles that may be applied to situations not covered elsewhere in this subpart. The guidance follows:
Title 41: Public Contracts and Property Management
PART 102–3—FEDERAL ADVISORY COMMITTEE MANAGEMENT
Subpart D—Advisory Committee Meeting and Recordkeeping Procedures
Appendix A to Subpart D of Part 102–3—Key Points and Principles
---------------------------------------------------------------------------------------------------------------- Key points and principles Section(s) Question(s) Guidance----------------------------------------------------------------------------------------------------------------I. With some exceptions, 102-3.140, 102- 1. Must all advisory committee and A. No. Advisory committee advisory committee 3.145(a), 102- subcommittee meetings be open to meetings may be closed meetings are open to the 3.155 the public? when appropriate, in public accordance with the exemption(s) for closure contained in the Government in the Sunshine Act, 5 U.S.C. 552b(c). (i) Subcommittees that report to a parent advisory committee, and not directly to a Federal officer or agency, are not required to open their meetings to the public or comply with the procedures in the Act for announcing meetings. (ii) However, agencies are cautioned to avoid excluding the public from attending any meeting where a subcommittee develops advice or recommendations that are not expected to be reviewed and considered by the parent advisory committee before being submitted to a Federal officer or agency. These exclusions may run counter to the provisions of the Act requiring contemporaneous access to the advisory committee deliberative process.----------------------------------------------------------------------------------------------------------------II. Notices must be 102-3.150 1. Can agencies publish a single A. Yes, agencies may published in the Federal Federal Register notice announcing publish a single notice Register announcing multiple advisory committee announcing multiple advisory committee meetings? meetings so long as meetings these notices contain all of the information required by § 102- 3.150. (i) ``Blanket notices'' should not announce meetings so far in advance as to prevent the public from adequately being informed of an advisory committee's schedule. (ii) An agency's Office of General Counsel should be consulted where these notices include meetings that are either closed or partially closed to the public.----------------------------------------------------------------------------------------------------------------III. Although certain 102-3.170 1. May an agency require the use of A. No. Section 10(b) of advisory committee its internal FOIA procedures for FACA provides that: records may be withheld access to advisory committee Subject to section 552 under the Freedom of records that are not exempt from of title 5, United Information Act (FOIA), release under FOIA? States Code, the as amended, 5 U.S.C. 552, records, reports, agencies may not require transcripts, minutes, the use of FOIA appendixes, working procedures for records papers, drafts, studies, available under section agenda, or other 10(b) of FACA documents which were made available to or prepared for or by each advisory committee shall be available for public inspection and copying at a single location in the offices of the advisory committee or the agency to which the advisory committee reports until the advisory committee ceases to exist. (i) The purpose of section 10(b) of the Act is to provide for the contemporaneous availability of advisory committee records that, when taken in conjunction with the ability to attend advisory committee meetings, provide a meaningful opportunity to comprehend fully the work undertaken by the advisory committee. (ii) Although advisory committee records may be withheld under the provisions of FOIA if there is a reasonable expectation that the records sought fall within the exemptions contained in section 552(b) of FOIA, agencies may not require members of the public or other interested parties to file requests for non- exempt advisory committee records under the request and review process established by section 552(a)(3) of FOIA. (iii) Records covered by the exemptions set forth in section 552(b) of FOIA may be withheld. An opinion of the Office of Legal Counsel (OLC), U.S. Department of Justice concludes that: FACA requires disclosure of written advisory committee documents, including predecisional materials such as drafts, working papers, and studies. The disclosure exemption available to agencies under exemption 5 of FOIA for predecisional documents and other privileged materials is narrowly limited in the context of FACA to privileged ``inter- agency or intra-agency'' documents prepared by an agency and transmitted to an advisory committee. The language of the FACA statute and its legislative history support this restrictive application of exemption 5 to requests for public access to advisory committee documents. Moreover, since an advisory committee is not itself an agency, this construction is supported by the express language of exemption 5 which applies only to inter-agency or intra- agency materials. (iv) Agencies first should determine, however, whether or not records being sought by the public fall within the scope of FACA in general, and section 10(b) of the Act in particular, prior to applying the available exemptions under FOIA. (See OLC Opinion 12 Op. O.L.C. 73, dated April 29, 1988, which is available from the Committee Management Secretariat (MC), General Services Administration, 1800 F Street, NW., Washington, DC 20405-0002.)----------------------------------------------------------------------------------------------------------------IV. Advisory committee 102-175(e) 1. How must advisory committee A. In order to ensure records must be managed records be treated and preserved? proper records in accordance with the management, the Federal Records Act Committee Management (FRA), 44 U.S.C. Chapters Officer (CMO), 21, 29-33, and Designated Federal regulations issued by the Officer (DFO), or other National Archives and representative of the Records Administration advisory committee, in (NARA) (see 36 CFR parts coordination with the 1220, 1222, 1228, and agency's Records 1234), or the Management Officer, Presidential Records Act should clarify upon the (PRA), 44 U.S.C. Chapter establishment of the 22 advisory committee whether its records will be managed in accordance with the FRA or the PRA. B. Official records generated by or for an advisory committee must be retained for the duration of the advisory committee. Responsible agency officials are encouraged to contact their agency's Records Management Officer or NARA as soon as possible after the establishment of the advisory committee to receive guidance on how to establish effective records management practices. Upon termination of the advisory committee, the records must be processed in accordance with the FRA and regulations issued by NARA, or in accordance with the PRA. C. The CMO, DFO, or other representative of an advisory committee governed by the FRA, in coordination with the agency's Records Management Officer, must contact NARA in sufficient time to review the process for submitting any necessary disposition schedules of the advisory committee's records upon termination. In order to ensure the proper disposition of the advisory committee's records, disposition schedules need to be submitted to NARA no later than 6 months before the termination of the advisory committee. D. For Presidential advisory committees governed by the PRA, the CMO, DFO, or other representative of the advisory committee should consult with the White House Counsel on the preservation of any records subject to the PRA, and may also confer with NARA officials.----------------------------------------------------------------------------------------------------------------
