The Federal Advisory Committee Act (“FACA”) was enacted in 1972 and establishes a comprehensive scheme to control the creation and operation of advisory committees in the executive branch of government. The FACA applies only to committees established or utilized by the president or an agency in the interest of obtaining advice or recommendations for the president or one or more agencies[i]. The FACA defines an advisory committee as any committee, board, commission, council, conference, panel, task force, or other similar group referred to as committee which is[ii]:
- Established by statute or reorganization plan;
- Established or utilized by the President;
- Established or utilized by one or more agencies, in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government.
However, such term excludes[iii]:
- Advisory Commission on Intergovernmental Relations;
- Commission on Government Procurement;
- Any committee is composed wholly of full time officers or employees of the federal government.
The FACA requires all advisory committee meetings to be open to Congress[iv] and public[v]. Congress expressly determined in the FACA that advisory committee reports and functions are not generally confidential[vi]. If a federal agency utilizes an advisory committee for the purpose of obtaining advice, the agency must charter and establish the committee in compliance with all the terms of the FACA[vii]. The functions of advisory committees must be advisory only, and all matters under their consideration must be determined according to law by the official, agency, or officer involved[viii].
It is to be noted that, subject to the Freedom of Information Act, records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by each advisory committee must be made available for public inspection[ix]
However, the FACA is limited to groups organized by or closely tied to the federal government and therefore enjoys quasi public status[x]. It is to be noted that FACA is not applicable to local civic groups or organizations established to advise or make recommendations to state or local officials or agencies.
[i] National Anti-Hunger Coalition v. Executive Committee of President’s Private Sector Survey on Cost Control, 557 F. Supp. 524 (D.D.C. 1983).
[iii] Food Chemical News v. Young, 900 F.2d 328 (D.C. Cir. 1990).
[iv] People for the Ethical Treatment of Animals v. Barshefsky, 925 F. Supp. 844 (D.D.C. 1996).
[v] Washington Post v. National Council on Arts, 1992 U.S. Dist. LEXIS 5885 (D.D.C. Apr. 29, 1992).
[vi] Gates v. Schlesinger, 366 F. Supp. 797 (D.D.C. 1973).
[vii] Food Chemical News, Inc. v. Davis, 378 F. Supp. 1048 (D.D.C. 1974).
[viii] 5 USCS Appx § 2.
[ix] 5 USCS Appx § 10.
[x] Animal Legal Defense Fund v. Shalala, 1994 U.S. Dist. LEXIS 20466 (D.D.C. Oct. 31, 1994).