Standards for Closing a Meeting of the Select Commission on Immigration and Refugee Policy

Standards for Closing a Meeting of the
Select Commission on Immigration and Refugee Policy

T h e S elect C om m issio n on Im m ig ratio n an d R e fu g ee P olicy is su b je ct to the req u irem en ts
o f th e F e d e ra l A d v iso ry C o m m itte e A c t, w h ic h p ro v id e s th at a d v iso ry c o m m ittee
m eetin g s m ay b e clo sed to th e public o n ly u p o n a d e te rm in a tio n th a t o n e o r m o re o f
th e ex em p tio n s o f th e G o v e rn m e n t in th e S u n sh in e A c t is applicable.

T h e D e c e m b e r 1980 m eeting o f th e C om m ission m ay n ot be closed in its e n tire ty for
natio n al se c u rity an d fo reig n p o licy reasons, insofar as it d eals w ith m atters n o t relatin g
to th o se issues; th e spirit o f th e F e d e ra l A d v iso ry C o m m ittee A c t req u ires th at the
m eetin g ag e n d a b e s tru c tu re d so th at classified an d o th e r ex em p t in fo rm atio n is c o n s id ­
ered se p ara te ly fro m th e m ain, an d co n g ressio n ally m an d ated public, po licy discussions
an d d ecisio n m ak in g activ ities o f th e C om m ission.

O ctober 10, 1980

T h e C h a irm a n o f th e S e le c t C o m m is s io n on
Im m ig ra tio n a n d !R e fu g e e P o lic y

M y D e a r M r . C h a i r m a n : This is in response to your letter o f Sep­
tem ber 2, 1980, concerning the possibility o f closing the D ecem ber
meeting o f the Select Commission on Imm igration and Refugee Policy
for national security and foreign policy reasons. I do not believe that
the meeting, in its entirety, may properly be closed on that ground to
the extent it deals with m atters not relating to those issues, e.g., en­
forcem ent matters.
T he Commission is an “advisory com m ittee” as that term is defined
in § 3(2) of the Federal A dvisory Com m ittee A ct (FA C A ), 5 U.S.C.
App. I. It is subject to the requirem ents o f the Act. U nder FA C A
§ 10(a)(1), advisory com m ittee meetings must be open to the public
unless closed pursuant to § 10(d). Section 10(d) permits closure o f “any
portion o f an advisory com m ittee m eeting w here the President, or head
o f the agency to w hich the Com m ittee reports, determ ines that such
portion o f such m eeting may be closed to the public in accordance with
subsection (c) of § 552b o f Title 5 (G overnm ent in the Sunshine A ct)”
(emphasis added). Thus an advisory com m ittee m eeting may be closed
only upon determ ination by an appropriate official 1 that one or more

1 E ith er “ the President o r head o f the agency to w hich the [Commission] reports.” F or the
Commission, the President and the “agency head” are identical. H ow ever, the President has delegated
his functions under F A C A to th e A dm inistrator o f G eneral Services, Executive O rd e r No. 12024, §2,

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o f the ten open-m eeting exemptions o f the G overnm ent in the Sunshine
A ct is applicable. T he determ ination must be in writing. F urther, only
those portions o f the m eeting to w hich the exemption relied upon is
relevant may be closed; the rem ainder o f the m eeting must be open.
You give examples o f the types o f issues to be discussed at the
D ecem ber m eeting and state your belief that full consideration o f those
issues may involve sensitive national security and foreign policy infor­
mation. You conclude, based on this, that the m eeting should be closed
in order to perm it the participants “to feel free to talk directly, con­
cretely, and confidentially on issues w hich vitally affect the formation
o f immigration and refugee policy.”
U nder applicable legal standards, only those portions of advisory
com m ittee meetings “likely to disclose m atters that are (A) specifically
authorized under criteria established by an Executive order to be kept
secret in the interests o f national defense or foreign policy and (B) in
fact properly classified pursuant to such Executive order,” 5 U.S.C.
§ 552b(c)(l) (emphasis added), may be closed for those reasons. It is, of
course, possible that the Commission, during its deliberations, might
need to consider particular inform ation related to national defense or
foreign policy that has been properly classified (under the standards of
Executive O rder No. 12065) by an official w ith classification authority.
If so, that portion o f the m eeting in w hich the particular information is
proposed to be discussed may be closed (w ith advance notice) under
the procedures o f F A C A § 10(d) and OM B C ircular A -63, as amended.
It does not appear, how ever, that the entire D ecem ber m eeting may be
closed based on the speculation that a free-form exploration o f issues
related to im migration policy might require that some classified infor­
mation be disclosed. T he spirit o f F A C A requires that the meeting
agenda be structured so that classified and other exempt information is
considered separately from the main, and congressionally mandated
public, policy discussions and decisionm aking activities o f the Commis­
sion, unless such structuring is impossible. I doubt that it would be
impossible in the case o f the D ecem ber meeting.
Should you believe that a portion o f the D ecem ber m eeting must be
closed so that the Commission may consider specific classified inform a­
tion, you should seek the assistance o f the Com mittee M anagement
Secretariat o f the G eneral Services A dm inistration in arranging for the
closure.

Sincerely,
B e n ja m in R. C iv il e t t i

w ho w ould be the app ro p riate official to make closing determ inations w ith respect to m eetings o f the
Commission.

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