concurring. I concur in the result reached insofar as this particular case is concerned. But except for the circumstances of this particular case, I agree with the judge of the Circuit Court, the Attorney General and the Board of Trustees of the University.
I have no quarrel with the policy declarations in the Freedom of Information Act. A public well informed as to actions of officials on public business, and the decisions made by them is essential to maintaining public confidence in public institutions and in restoring it where it is lost or impaired. The provisions of the act are decidedly beneficial for that purpose and the legislation should be classified and construed as remedial in nature.
I do think, however, that reading into the act a requirement that all committee meetings are public meetings under the statutory definition is more than a liberal interpretation of the act. It is, in my opinion, an extension made by rhetoric rather than reason. In the definition of “Public Meetings” it would have been so simple to have added the word “committee” somewhere if the General Assembly had intended the act, in derogation of common law, to be so comprehensive. Not only did it carefully avoid this, none of the words used is broad enough to encompass a committee of a bureau, commission, agency, board or organization. No one thinks of any of these words, in their common acceptation, as meaning committee, where the committee has no authority to act for its parent organization. See Adler v. City Council of City of Culver City, 184 Cal. App. 2d 763, 7 Cal. Rptr. 805 (1960); McLarty v. Board of Regents of the University System, 231 Ga. 22, 200 S.E. 2d 117 (1973). When it does have such authority, it becomes the alter ego of the body itself, and in my opinion subject to the same requirements of the Freedom of Information Act as its parent board, commission, agency, bureau, organization or governing body and its meetings become, to say the least, informal meetings of the board. But there is no indication in this record that the committee involved here was given any such actual authority. Furthermore, I cannot subscribe to the view that either ultimate favorable board action on a committee recommendation or usurpation of authority by it to act in a matter not referred to it by the parent organization is evidence of implied authority. Neither can I agree that the evidence shows that board action upon committee recommendations in this situation is either automatic or ceremonial or perfunctory.
But I attach great significance to a factor the majority considers insignificant. I agree with appellants that when a committee consists of a majority of the board itself, the committee can and, in all probability will, become the alter ego of the board, and its meetings, informal meetings of the board, particularly when any or all of the members of the board may attend. I cannot accept appellee’s argument that the chairman is not a member of the committee, simply because of his ex-officio status. This simply means that he is a member of all committees by virtue of his office as chairman. Black’s Law Dictionary, 4th Ed.
Until today’s decision, the most extreme position regarding committee meetings appears to have been taken by Florida courts. In Bigelow v. Howze, 291 So. 2d 645 (Fla. App. 1974), where, I submit, the reach of judicial notice was overextended, as I feel it has been by the majority here, the result reached and the answer to the question actually posed there is not nearly so extreme as its language or the result here. In that case a county commission had appointed a committee consisting of two of its five members and the tax assessor to investigate and report on the ability of two firms to do a comprehensive reappraisal of real and personal property in the county. The county attorney was an ex-officio member of the committee. A complete quotation of the actual decision follows:
We do not suggest that the committee cannot interview others privately concerning the subject matter of the committee’s business or discuss among itself in private those matters necessary to carry out the investigative aspects of the committee’s responsibility. Cf. Basset v. Braddock, Fla. 1972, 262 So. 2d 425. However, at the point where the members of the committee who are also members of the public body make decisions with respect to the committee’s recommendation, this discussion must be conducted at a meeting at which the public had been given notice and a reasonable opportunity to attend.
This court may take judicial notice of the fact that committee recommendations are often accepted by public bodies at face value and with little discussion. Therefore, unless the decision making process of a committee composed of two or more members of the public body appointing the committee is made in public, the salutory objectives of the Sunshine Law will have indeed become clouded.
In Board of Public Instruction of Broward County v. Doran, 224 So. 2d 693 (Fla. 1969) the trial court injunction affirmed only prohibited meetings or conference sessions “at which a quorum is present”. In Town of Palm Beach v. Gradison, 296 So. 2d 473 (1974), the committee involved was characterized by the Florida Supreme Court as a buffer to serve as the alter egos of the Town Councilmen to make tentative decisions guiding zoning planners and advising the Council as to their ultimate zoning ordinances. The court considered that much of the Council’s administrative and legislative decisional zoning formulation authority had been delegated to the committee. Where this is the case, I would agree with the Florida court.
But the Florida Supreme Court has finally said that a careful rereading of its opinions and the act fails to support the contention that prior decisions compel public meetings for acts of deliberation, discussion and deciding, prior to and leading up to affirmative formal action. Bassett v. Braddock, 262 So. 2d 425 (1972).
It can be argued with considerable force that the result of the extension made here is an impediment to informal discussions and exchange of information among committee members, and consultation by them with experts or informed individuals having special qualifications to speak upon problems being investigated by the committee. There is an appropriate investigative and exploratory stage preceding many actions by governmental bodies and agencies. At this stage, it may be said there are advantages to the public in permitting preliminary discussions in which there can be greater freedom of expression without fear of benefitting special interests, harming reputations, inviting pressure from special interests, creating a public image of ignorance by searching questions, producing demagogic oratory, exposing disagreements of subordinates with policy determinations they must administer, or “freezing” members into publicly expressed opinions they might well prefer to abandon. In such initial stages, it is well that much be done and said which is exploratory, experimental and hypothetical, and open meetings could prove to be an impediment to a free exchange of ideas of that sort. See Open Meeting Statutes: The Press Fights for the “Right to Know,” 75 Harvard Law Review 1199, 1202, 1219 (1962).1 The writer of that article, an advocate of the extension of Freedom of Information acts, demonstrates that a policy determination is involved in this language found at p. 1206:
. . . .Whether the courts will construe less explicit statutes as applying to subordinate committes and agencies is problematical. Since such groups have no power to make governmental decisions and since their recommendations must be considered in open session by the parent body, the need for public meetings is less compelling; indeed, privacy may facilitate the gathering of information as well as preliminary discussion. But if in practice recommendations are adopted with only perfunctory consideration by the parent grbup, the public will be deprived of information about the actual process of decision. And since there seems to be no particular reason for leaving subordinate groups always free to meet in private, the preponderant interest in informing the public seems sufficient to justify their inclusion.
Likewise, an Ohio court has recognized the impossibility of satisfactory accomplishment of the desired freedom of discussion and exchange of ideas essential to clear understanding and thinking under a spotlight or before a microphone. Dayton Newspapers, Inc. v. City of Dayton, 28 Ohio App. 2d 95, 274 N.E. 2d 766 (1971).
Public policy matters are involved. Fundamentally, the legislative branch declares public policy. If the common law is to be changed by extension of the Freedom of Information Act to all committees of every public board, commission, agency, organization or governing body, it should be done, as it was in California and New Jersey, by the General Assembly. See Sacramento Newspaper Guild v. Sacramento Co. Bd. of Supervisors, 263 Cal. App. 2d 41, 69 Cal. Rptr. 480 (1968); Comment, Access to Government Information (Blum), 54 California Law Review 1650, 1653 (1966); Wolf v. Zoning Board of Adjustment of Park Ridge, 79 N.J. Super 546, 192 A. 2d 305 (1903). The great disadvantage in courts’ attempting to declare public policy lies in the fact that attention is necessarily focused on the particular interests of the litigants. In contrast, the legislature has the advantage of having all perspectives presented and considered in making such determinations. This determination should have been left with the General Assembly where it belongs, both as a policy decision and as a change in the common law. Even the Florida Supreme Court has finally recognized the hazards of “judicial implementation.” Bassett v. Braddock, 262 So. 2d 425 (1972).
To say the least, all the court needs to decide today is that the committee consisting of a quorum of the board, as its alter ego, is subject to the same requirements of the Freedom of Information Act as the parent board. Courts should decide cases, not controversies.
I also agree with the result as to the standing of appellants, but cannot embrace all the particular reasons given in reaching it. In view of the efforts of appellee to have affirmative relief and in the absence of any showing that the standing of appellants to bring the action was challenged in the trial court, it appears to me that the question was waived and is raised for the first time on appeal. This is not a defect, if it is one at all, that goes to subject matter jurisdiction, so it is tardily raised. To say the least, if the challenge had been raised in the trial court, it is entirely possible that it would have been met there. See Sacramento Newspaper Guild v. Sacramento Board of Supervisors, 263 Cal. App. 2d 41, 69 Cal. Rptr. 480 (1968).
I would reverse the circuit court judgment only to the extent indicated. *
See also Comment, Access to Governmental Information in California, (Blum) 54 California Law Review 1650, 1651, 1655, (1966).