The FCC ruled, however, that if Faith Center's third distress sale was not consummated, its renewal application would be promptly considered, allowing competing applications to be considered as well. Shurberg then filed an appeal of the FCC's decision with the United States Court of Appeals for the District of Columbia Circuit, where it remains pending. Shurberg Broadcasting of Hartford, Inc. v. FCC, 278 U.S. App. D.C. 24, 876 F.2d 902 (D.C. Cir. 1989).
On October 2, 1984 the plaintiff submitted its FOIA request to the FCC, requesting documents concerning Faith Center, and individuals and entities involved in the Faith Center proceedings before the FCC. On October 17, 1984 the FCC responded to plaintiff's request, noting that it construed the request as seeking materials relating only to Faith Center's last petition for distress sale,
and indicating that seven documents responsive to plaintiff's request had been located, as well as the videotape of the FCC's September 26, 1984 meeting. The FCC's October 17, 1984 response indexed and briefly described the items indicated. The videotape recording was withheld, however, pursuant to exemption 10 of the Sunshine Act, 5 U.S.C. § 552b(c)(10). Furthermore, all of the other documents were withheld pursuant to FOIA exemption (b)(5) which exempts inter-agency communication concerning internal decision-making, often referred to as the "deliberative process" exception to FOIA. Thereafter, on November 7, 1984, plaintiff filed this action for relief under FOIA and the Sunshine Act.
I. The Sunshine Act
The Sunshine Act requires that meetings of all multi-membered federal agencies be conducted in public except in very limited, narrowly defined circumstances. 5 U.S.C. § 552b(b) & (c). As succinctly stated by Congress, the purpose of the Sunshine Act is to assure that the "government should conduct the public's business in public." S. Rep. No. 94-354, 94th Cong., 1st Sess. (1975); see also H.R. Rep. No. 880, 94th Cong., 2d Sess. 2-4 (1976). In seeking to close a meeting, the agency bears the burden of establishing that its meeting is subject to at least one of ten statutorily defined grounds for closure. 5 U.S.C. § 552b(c); Philadelphia Newspapers, Inc. v. NRC, 234 U.S. App. D.C. 96, 727 F.2d 1195, 1200 (D.C. Cir. 1984); Common Cause v. NRC, 218 U.S. App. D.C. 262, 674 F.2d 921, 928 (D.C. Cir. 1982). Furthermore, even if one or more exemptions may justify closure of a portion of a particular meeting, the agency must attempt to segregate the non-exempt from the exempt portions, and close only those portions of the meeting involving exempt topics, unless, "after making such efforts, an agency can persuade the court that segregation of exempt and non-exempt topics 'would make a coherent discussion impossible'. . . ." Philadelphia Newspapers, 727 F.2d at 1201 (quoting Common Cause, 674 F.2d at 936 n.46).
In closing the September 26, 1984 meeting the defendant invoked exemption 10 of the Sunshine Act indicating that the meeting would concern a case of pending adjudication before the Commission, as well as pending litigation instituted against the Commission by Shurberg in the Court of Appeals for the District of Columbia Circuit. (Defendant's Motion to Dismiss or, in the Alternative, for Summary Judgment, Exhibit 4.) Exemption 10 provides that portions of a meeting may be closed to the public if they
specifically concern the agency's issuance of a subpoena, or the agency's participation in a civil action or proceeding, an action in a foreign court or international tribunal, or an arbitration, or the initiation, conduct, or disposition by the agency of a particular case of formal agency adjudication pursuant to the procedures in section 554 of this title or otherwise involving a determination on the record after opportunity for a hearing.