dissenting:
I believe the majority’s broad construction of the litigation exemption to the Sunshine Act is inconsistent with the spirit of the Act and with this court’s established approach to such questions. In my view, the panel opinion more accurately reflects the intent of Congress as to the scope of the Sunshine Act. Therefore, I must respectfully dissent.
The Sunshine Act, 5 U.S.C. § 552b (1982), embodies the belief of Congress that openness in government is essential to representative democracy. See Philadelphia Newspapers, Inc. v. NRC, 725 F.2d 1195, 1199 (D.C.Cir.1984). Secrecy contributes to erosion of popular confidence in government, dampens well-informed public debate, and diminishes governmental accountability to the electorate. Common Cause v. NRC, 674 F.2d 921, 928 (D.C.Cir.1982); S.Rep. No. 354, 94th Cong., 1st Sess. 4-5 (1975) (hereinafter Senate Report); H.R. Rep. No. 880 (part 1), 94th Cong., 2d Sess. 2 (1976), U.S.Code Cong. & Admin.News 1976, 2184 (hereinafter House Report).
The Act establishes a presumption that meetings should be held in the open and places the burden on the agency to justify any decision to conduct deliberations outside of public view. 5 U.S.C. § 552b(h)(l); Common Cause, supra, 674 F.2d at 929; Senate Report at 19. Only if a matter falls within one of ten specific exemptions may an agency properly elect to close a meeting. Pan American World Airways, Inc. v. CAB, 684 F.2d 31, 35 (D.C.Cir.1982).
We have repeatedly held that all the exemptions, including the litigation exemption, must be construed narrowly. See Common Cause, supra, 674 F.2d at 932; Philadelphia Newspapers, supra, 727 F.2d at 1199; see also Senate Report at 2 (exemptions “narrow” in scope). To ensure that agencies “conduct their deliberations in public to the greatest extent possible,” Senate Report at 11, as Congress intended, we must carefully limit the scope of Exemption 10 to its underlying purpose — protection of the government’s ability to conduct ongoing litigation. Once litigation has ended, agencies must release the transcripts of any prior meetings closed on account of that litigation.
The majority asserts that Exemption 10 “serves to facilitate the candid exchange of views between client and counsel necessary for effective participation in adversary proceedings. Exposing such communications post hoc would tend to inhibit free and open discussion nearly as much as would contemporaneous disclosure.” Majority opinion (maj. op.) at 502. The majority offers no evidence, however, that concern over possible “chilling effects” on agency discussion played any part in the congressional adoption of this exemption. In fact, the legislative history is to the contrary. Congress repeatedly rejected such arguments. See, e.g., Senate Report at 6-8; 121 Cong.Rec. 35322 (1975) (statement of *505Senator Ribicoff) (“Openness does not in fact hurt the quality of discussion or inhibit free and frank discussions.”); id. at 35331 (statement of Senator Weicker). Congress enacted Exemption 10 solely to protect the government’s ability to conduct litigation. See Senate Report at 26; House Report at 12-13. Appellee itself notes that Congress limited the Act's verbatim transcript requirement to meetings closed under Exemptions 8, 9 and 10. Brief for appellee at 20. If we assume, for the sake of argument, that this limitation reflects congressional concern over the possible chilling effects of such transcripts, we must also note that the limitation indicates a specific lack of concern on this point for Exemption 10. Nowhere in Exemption 10 or its legislative history is concern over “chilling effects” to be found.
Moreover, the majority’s view that Exemption 10 “clearly reflects” the attorney-client privilege flies in the face of congressional resolve to avoid such a broad exemption from the Sunshine Act. Despite the urging of several federal agencies, see Common Cause, supra, 674 F.2d at 929, Congress refused to amend the Sunshine bill to include an exemption similar to the “predecisional memorandum” exemption found in the Freedom of Information Act (FOIA), 5 U.S.C. § 552(b)(5) (1982). The Supreme Court had held that FOIA’s “predecisional memoranda” exemption incorporates an exemption for the attorney-client privilege. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 154, 95 S.Ct. 1504, 1518, 44 L.Ed.2d 29 (1974). By refusing to insert the FOIA exemption in the Sunshine Act, Congress also refused to include a full-fledged attorney-client privilege exemption.* For the same reason, the majority’s reliance on FTC v. Grolier Inc., 462 U.S. 19, 103 S.Ct. 2209, 76 L.Ed.2d 387 (1983), is misplaced. In Grolier the Supreme Court interpreted the precise FOIA exemption Congress refused to make a part of the Sunshine Act. Id. at 20, 103 S.Ct. at 2210-11. Regardless of the persuasiveness of Justice Brennan’s analysis of the attorney-client privilege in Grolier, the case now before this court does not concern that privilege. The Grolier analysis cannot effectively illuminate the contours of the Sunshine Act’s Exemption 10.
The majority is also reluctant to adopt my reading of Exemption 10 because it finds it unlikely “that Congress would have written an express temporal limitation into Exemption 9 and yet have intended a similar (unwritten) limitation to apply to Exemption 10.” Maj. op. at 501. But Exemption 9 does not truly contain any “express temporal limitation.” That exemption protects certain information “the premature disclosure of which” would harm certain financial interests or frustrate proposed agency action. The words “premature disclosure” are words of definition — they describe the material to be protected by the exemption. They do not, on their face, impose a time limit. Exemption 9 does not expressly say that after disclosure of such information would no longer be harmful the agency must release the no-longer-sensitive material. Such an inference is entirely reasonable, of course, especially in view of the legislative history of the Act. See Senate Report at 32. But it is nonetheless an inference rather than an express provision. The absence of temporal words of definition in Exemption 10 does not bar the same kind of inference for that exemption.
The majority maintains, however, that the legislative history of the Act refers to time limits only for Exemption 9. For that proposition the majority quotes a portion of this passage from the Senate Report:
[A] meeting will be closed because it involves matters which are sensitive at the time, such as the regulation of finan*506cial institutions, that would cause financial speculation if disclosed prematurely. Later, however, the discussion’s sensitive nature may disappear. An agency must then publicly release the record of its meeting at a later date when [the exemption] no longer applies.
Senate Report at 32, quoted in part in maj. op. at 502. Admittedly, the only explicit reference in this passage is to a matter covered by Exemption 9. But the language of the passage (“such as”) is clearly exemplary, rather than exhaustive. It applies to any discussion whose “sensitive nature may disappear,” not only to those discussions covered by Exemption 9. The passage is entirely consistent with the conclusion that Congress intended such a time limit to apply to Exemption 10 as well.
The Senate Report makes the intent behind the exemption clear:
To fall within the provisions of [the litigation exemption] the discussion must concern a particular case of adjudication. If the agency discusses a particular series of cases, each of which meets the requirements of [the exemption], the meeting may also be closed. The [exemption] would not apply when an agency discusses its adjudication policies in general, such as the policy that should be adopted towards all those that may violate a particular law.
Senate Report at 26. Leaving aside any hypothetical chilling effects, once the “particular case” under discussion in a closed meeting has been resolved, the agency no longer has any information to protect other than its discussion of “adjudication policies in general.” This is the sort of discussion that Congress explicitly refused to allow agencies to carry on in secret. In any event, neither FERC nor the majority suggest that any such general litigation policies are involved here. We are left to wonder what it is that FERC feels must be protected.
In the process of reading out of Exemption 10 any time limit on withholding litigation meeting transcripts, the majority also extends the exemption to cover policy deliberations conducted in conjunction with litigation strategy. Although the panel opinion did not reach this complicated issue, I must disagree with the majority nevertheless. Exemption 10 should have only limited applicability to general policy deliberations that occur in the course of formulating Strategy in pending litigation. Unquestionably, as the majority observes, it is not “unusual for a discussion focused on litigation tactics to lead a party to modify its substantive position.” Maj. op. at 502. But that is not an argument for keeping the discussion secret beyond the time necessary to protect the agency’s position in the pending litigation. On the contrary, given the Sunshine Act’s unequivocal congressional command for openness in government, the inevitable entanglement of general policy discussion and legal strategizing argues in favor of a time limit on Exemption 10. Although the Sunshine Act would not demand immediate disclosure of a substantive change in policy if that disclosure would damage the agency’s litigation position, the public retains a powerful interest in ultimately knowing how and why that substantive policy change came about. Exemption 10 should shield what would otherwise be public only to the extent necessary to protect litigation strategy. The majority correctly notes that there is no evidence of “subterfuge” in FERC's policy reversal. But the agency’s intent should not be determinative; good faith is no substitute for full disclosure.
As I noted in the panel opinion, 775 F.2d 359, 364-65 (D.C.Cir.1985), vacated, 788 F.2d 762 (D.C.Cir.1986) (per curiam), it is important to point out that Exemption 10 does not vanish in every case the moment the underlying litigation draws to a close. Some matters may be discussed in the course of a particular litigation the disclosure of which would thwart effective litigation in other cases. Revelation of an agency’s strategy for a series of similar cases, for example, could have a debilitating ef*507feet on the agency’s overall litigation policy. See Senate Report at 26. But topics that transcend any single litigation certainly will be less common than more specific topics. The transcript Clark-Cowlitz seeks to obtain here contains nothing that will hinder FERC by its disclosure.
For these reasons, I would reverse the judgment of the District Court and remand the case to that court with instructions to order the Commission to release to the public the transcript of the April 25th meeting.
I respectfully dissent.
This is not to suggest, of course, that Congress did not exempt certain types of predecisional discussions from the effects of the Sunshine Act. Exemption 10, for example, clearly encompasses some such discussions. Nonetheless, in light of the explicit refusal of Congress to include an exemption that would have fully embraced the attorney-client privilege, the majority’s analogy between Exemption 10 and the attorney-client privilege seems particularly inapt.