Federal Reserve Board Efforts to Control Access to Buildings and Open Meetings

Federal Reserve Board Efforts to Control Access to
Buildings and Open Meetings
The Board of Governors of the Federal Reserve System may, consistent with its obligations under the
Government in the Sunshine Act, place observers of an open meeting of the Board in a separate
room to watch the meeting on closed-circuit television.
It is permissible under both the Sunshine Act and the Privacy Act for the Board to require disclosure of
personal information and satisfaction of a security check as a condition of entering the Board’s
buildings for access to the separate room to observe an open meeting.

July 9, 2002

MEMORANDUM OPINION FOR THE GENERAL COUNSEL
BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM

This memorandum responds to your request for our opinion regarding the
permissibility, under the Government in the Sunshine Act (“Sunshine Act”) and
the Privacy Act, of certain actions that might be taken by the Board of Governors
of the Federal Reserve System (“Board”). 1 You have asked two questions: First,
may the Board place all members of the public who wish to observe an open
meeting of the Board in a room that is physically separate from the meeting room,
where they can observe and listen to the meeting by closed-circuit television?
Second, may the Board screen all members of the public seeking entrance to a
Board building to observe an open meeting of the Board, by obtaining personal
information and conducting a security check, and refuse admission to those who
either refuse to give the information or fail the security check? We conclude that it
would be permissible under both the Sunshine Act and the Privacy Act for the
Board to engage in these actions.

I.

“Because of its status as the world’s most important central bank, the promi-
nence of its Chairman, and the hugely adverse consequences to the United States
and world economies that could result from an attack on the Federal Reserve, the
Board . . . has significant security needs.” Board Letter at 2-3. These needs have
led the Board to consider adopting the measures outlined above.
As part of its duties, the Board conducts open meetings to discuss the country’s
economic health and to determine what actions, if any, must be taken to address
inflation, unemployment, or other economic concerns. The Board is considering

1
See Letter for Paul Colborn, Special Counsel, Office of Legal Counsel, from J. Virgil Mattingly,
Jr., General Counsel, Board of Governors of the Federal Reserve System (Apr. 10, 2002) (“Board
Letter”).

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 Federal Reserve Board Efforts to Control Access to Buildings and Open Meetings

adopting a policy of placing all members of the public who enter the Board’s
buildings to attend an open meeting of the Board in a room that is physically
separate from the meeting room. In this room they can watch and listen to the
meeting by closed-circuit television.
In addition, the Board is also considering screening all potential entrants to its
buildings. The screening would require obtaining certain information from
potential entrants and checking information with established law enforcement
sources to evaluate possible security risks. The Board’s security staff would solicit
information such as name, date of birth, and social security number. The infor-
mation would be solicited to the greatest extent possible under a pre-screening
procedure, but also at the building’s entrance. Consistent with current practice,
potential entrants would be required to produce a photo ID at the door. Under the
proposed plan, the Board would bar from the building any person who fails to
provide the requested information or fails the security check. 2
The first question we address is whether placing members of the public in a
separate room to observe a Board meeting would be permissible under the
Sunshine Act. We then turn to the permissibility of requiring members of the
public to provide personal information and satisfy a security check before they
may enter a Board building to observe a meeting. That question entails issues
under both the Sunshine Act and the Privacy Act.

II.

The Sunshine Act, 5 U.S.C. § 552b (2000), applies to agencies that are headed
by a collegial body of two or more members. Id. § 552b(a)(1). The Act requires
that covered agencies hold their deliberations on agency action in open meetings:
“Members shall not jointly conduct or dispose of agency business other than in
accordance with this section. Except as provided in subsection (c) [providing for
exceptions not relevant to the question presented here], every portion of every
meeting of an agency shall be open to public observation.” Id. § 552b(b) (empha-
sis added). The contemplated Board action of providing for observation of the
meeting in a separate room would be inconsistent with this open-meeting require-
ment only if the italicized language requires the Board to allow members of the
public to enter the actual meeting room and observe the meeting there. We do not
believe that the statute imposes such a requirement.
Under a straightforward reading of the “open to public observation” language
of subsection (b), the Board may satisfy its statutory requirement by providing a
separate room for members of the public to observe Board meetings by closed-
circuit television. The Sunshine Act does not authorize members of the public to

2
The Board notes that the White House and the Treasury Department have similar clearance
procedures to control access to their buildings. Board Letter at 2.

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participate in meetings, nor does it permit them to disrupt meetings. See Barbara
Allen Babcock, Department of Justice Letter to Covered Agencies (Apr. 19, 1977)
(“DOJ Letter”), in Richard K. Berg & Stephen H. Klitzman, Interpretive Guide to
the Government in the Sunshine Act 121 (1978) (“Interpretive Guide”). Since the
public is not authorized to participate in the meeting, there is nothing inherent in
the concept of “open to public observation” that would obligate the Board to place
members of the public in the same room as the Board. As long as the public can
adequately see, hear, and understand what takes place in the meeting, the require-
ment will have been met because the meeting would be “open to public observa-
tion.”
The legislative history of the Sunshine Act is consistent with our view that
“open to public observation” does not contain an implied requirement that
members of the public be present in the actual meeting room in order to observe a
meeting. The Sunshine Act “is founded on the proposition that the government
should conduct the public’s business in public. [The Act] requires . . . all Federal
agencies subject to the legislation to conduct their meetings in the open, rather
than behind closed doors.” S. Rep. No. 94-354, at 1 (1975). In other words, the
critical purpose of the Act is to ensure that the decisionmaking meetings of
covered agencies be open, not closed. Thus, so long as the Board’s meetings are
conducted “in the open” and the public can observe the meetings, this purpose
would be satisfied.
The phrase “open to public observation” was adopted by the House of Repre-
sentatives, and accepted by the conference committee, as a substitute for the “open
to the public” formulation adopted by the Senate. The House committee gave the
following rationale for the change: “The phrase ‘open to public observation,’
while not affording the public any additional right to participate in a meeting, is
intended to guarantee that ample space, sufficient visibility, and adequate acous-
tics will be provided.” H.R. Rep. No. 94-880, pt. 1, at 8 (1976), reprinted in 1976
U.S.C.C.A.N. 2183, 2190 (emphasis added); see also H.R. Rep. No. 94-1441, at
11 (1976) (Conf. Rep.), reprinted in 1976 U.S.C.C.A.N. 2183, 2247 (“The phrase
‘open to public observation’ is intended to guarantee that ample space, sufficient
visibility, and adequate acoustics will be provided.”). Placing members of the
public in a large enough separate room with adequate closed-circuit television
capability would satisfy that purpose.

III.

Whether the Board may deny individuals access to Board buildings to observe
an open meeting turns on whether the Sunshine Act provides each individual
member of the public with a right to observe an open meeting of a covered agency.
Resolution of that question also determines the Privacy Act question that you have
raised.

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 Federal Reserve Board Efforts to Control Access to Buildings and Open Meetings

A.

The open meeting requirement of subsection (b) of the Sunshine Act—that
meetings be “open to public observation”—is not stated in terms of granting a
right to individuals to attend agency meetings, but rather is articulated in more
general language obligating an agency to provide the public as a whole with the
opportunity to observe meetings. Thus, we believe that the requirement is satisfied
if members of the general public have the opportunity to attend the meeting. The
language does not constitute a requirement that all members of the public, or any
particular individuals, who wish to observe a meeting be allowed to do so. 3
The Sunshine Act’s Declaration of Policy states that “[i]t is the purpose of this
Act to provide the public with . . . information [about government decisionmaking]
while protecting . . . the ability of the Government to carry out its responsibilities.”
5 U.S.C. § 552b note. Pursuant to other statutory authority, the Board has sole
control of its buildings. See 12 U.S.C. § 243 (2000) (“The Board may maintain,
enlarge, or remodel any building or buildings so acquired or constructed and shall
have sole control of such building or buildings and space therein.”). Sole control
of its buildings implies that the Board should be able to deny access to its build-
ings for reasonable reasons, such as the significant security concerns expressed by
the Board, see Board Letter, supra note 1, at 1 (citing a desire to implement
stronger security measures in controlling access to the buildings “in order to
address increased concerns about attacks on its buildings”). Thus, reading the
Board’s statutory control over its buildings together with the Sunshine Act’s open
meeting requirement further reinforces our conclusion that although the public as a
whole is entitled to observe Board meetings, particular individuals can be turned
away.
The legislative history of the Sunshine Act comports with our reading. As
discussed above, the Sunshine Act’s legislative history indicates that Congress’s
purpose in enacting the open meeting requirement was to ensure that
decisionmaking meetings be held in the open and not behind closed doors. That
history does not reveal any congressional intent to create a right for every
individual to attend the meetings. In addition, Congress used the phrase “open to
public observation” to address logistical concerns: it wanted adequate space to
accommodate meeting observers. The legislative history indicates that an agency
is not required under the Act to guarantee that every person who seeks to attend a

3
Even the Sixth Amendment, which establishes for defendants a constitutional right to a “public
trial,” does not give an individual member of the public the right to attend a trial. Rather, a trial open to
the public in general satisfies the constitutional requirement. See Estes v. Texas, 381 U.S. 532, 588-89
(1965) (Harlan, J., concurring) (“Obviously, the public-trial guarantee is not violated if an individual
member of the public cannot gain admittance to a courtroom because there are no available seats. The
guarantee will already have been met, for the ‘public’ will be present in the form of those persons who
did gain admission.”).

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meeting may do so, so long as accommodation for a reasonable number of people
is provided. See S. Rep. No. 94-354, at 19 (emphasis added) (“When a meeting
must be open, the agency should make arrangements for a room large enough to
accommodate a reasonable number of persons interested in attending. Holding a
meeting in a small room, thereby denying access to most of the public, would
violate this section and be contrary to its clear intent.”). 4

B.

As discussed above, we believe that the open meeting requirement of the Sun-
shine Act does not provide all individuals with the right to observe a covered
agency’s meetings, but rather only imposes on the agency the obligation to hold
open meetings—that is, meetings open to the public at large. We therefore
concluded that it would be permissible under the Sunshine Act for the Board to
require that individuals seeking to observe Board meetings provide personal
information and satisfy a security check. It necessarily follows from that conclu-
sion that such a practice by the Board would not violate section 7 of the Privacy
Act, which makes it unlawful for an agency “to deny to any individual any right,
benefit, or privilege provided by law because of such individual’s refusal to
disclose his social security account number.” Pub. L. No. 93-579, § 7, 88 Stat.
1896, 1909 (1974). This is so because the Sunshine Act’s open meeting require-
ment does not create an individual “right, benefit, or privilege” within the meaning
of section 7 of the Privacy Act.
The legislative history regarding this provision of the Privacy Act supports the
view that the provision’s reference to “right, benefit, or privilege” refers to
individual rights granted by the Constitution or statutes. The Senate debates
provide an example of what the provision was intended to cover: “[I]t will be
unlawful to commence operation of a State or local government procedure that

4
We disagree with a portion of the 1977 DOJ Letter that bears on this question. The DOJ Letter
states that “[o]f course, any person may attend a meeting without indicating his identity and/or the
person, if any, whom he represents and no requirement of prior notification of intent to observe a
meeting may be required.” Interpretive Guide at 121. We find nothing in the text of the Sunshine Act
that precludes imposing such requirements, nor do we see anything in the legislative history that
suggests such an effect. We note further that the DOJ Letter was signed by the head of the Civil
Division, which is a litigation division of the Department of Justice, and not by the Office of Legal
Counsel, which is the component of the Department responsible for providing legal advice. The broad
interpretation of statutory terms throughout the DOJ Letter apparently reflects a desire to improve the
government’s litigating position under the Sunshine Act. For example, the DOJ Letter recommends that
agencies allow sound recordings, notes, and photography “in order to avoid needless litigation over
issues which do not go to the heart of the Act.” Id. See also id. (“I suggest that you insure that the term
‘meeting’ is broadly defined in practice so that the statute of limitations can come into play and so that
the potential for litigation can be reduced.”). Although we understand the practical interest in defining
terms broadly to minimize litigation risk, we believe that the correct reading of “open to public
observation” is that it is addressed only to the agencies as a requirement that the meeting be open to the
public at large.

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requires individuals to disclose their social security account number in order to
register a motor vehicle, obtain a driver’s license or other permit, or exercise the
right to vote in an election.” 120 Cong. Rec. 40,407 (1974) (statement of Sen.
Ervin). Attending a meeting open to the public under the Sunshine Act is qualita-
tively different from receiving a driver’s license or exercising the right to vote.
Any individual who meets the necessary requirements may drive a car or vote in
an election because the law gives each individual that right. Voting involves a core
individual right. Driving a car is a daily activity engaged in by many individuals.
Nothing in the Sunshine Act, however, provides any particular member of the
public with a right to observe an agency meeting. All the Act does is require the
agency to open its deliberative meetings to public observation. The denial of
access to an individual who fails to provide a social security number or pass the
security check may prevent that particular person from observing the meeting, but
it does not foreclose the public observation of the meeting by other members of
the public who provide their social security numbers and pass the security check.

IV.

We conclude that the Board may, consistent with its obligations under the
Sunshine Act, place observers of an open meeting of the Board in a separate room
to watch the meeting on closed-circuit television. We also conclude that it is
permissible under both the Sunshine Act and the Privacy Act for the Board to
require disclosure of personal information and satisfaction of a security check as a
condition of entering the Board’s buildings for access to the separate room to
observe the open meeting.

M. EDWARD WHELAN III
Principal Deputy Assistant Attorney General
Office of Legal Counsel

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