and comment upon any guidelines proposed by the Commission after its review of the work of the Advisory Group. See 28 U.S.C. § 994(x). Merely because the Plaintiff does not have access to these initial proceedings does not shut the Plaintiff out of the decision-making process. Furthermore, because subsequent proceedings will be open, less weight should be given the Plaintiff's desire to have immediate access to these preliminary proceedings. See United States v. Doe, 235 U.S. App. D.C. 99, 730 F.2d 1529, 1532 (D.C. Cir. 1984). Thus, the Plaintiff does not have a common law right of access to the documents of the Advisory Group because they do not constitute "public records" within the meaning of the doctrine.
IV. THE COMMISSION ACTED WITHIN ITS STATUTORY AUTHORITY WHEN IT CREATED THE ADVISORY GROUP AND PERMITTED IT TO MEET IN PRIVATE TO FORMULATE PROPOSALS TO ASSIST THE COMMISSION IN DEVELOPING SENTENCING GUIDELINES AS TO ENVIRONMENTAL OFFENSES COMMITTED BY ORGANIZATIONS.
The Plaintiff's final argument is that the Sentencing Reform Act, which created the Sentencing Commission, did not authorize the Commission to create and utilize an Advisory Group.
The Plaintiff concedes that the Commission is authorized to "accept and employ, in carrying out the provisions of [the Sentencing Reform Act], voluntary and uncompensated services . . . ." by individuals such as those serving as members of the Advisory Group in this case. See 28 U.S.C. § 995(a)(7). The Plaintiff argues that the Commission may exercise this power only to the extent "necessary to carry out the purposes of" the Sentencing Reform Act. 28 U.S.C. § 995(b).
The Plaintiff does not dispute the authority of the Commission to establish Advisory Groups to assist it in formulating draft sentencing guidelines. The Plaintiff challenges, however, whether it is "necessary" for the Advisory Group to meet in private. The Defendants argue, properly, that the powers given to the Commission in § 994(a) are separate and apart from the general grant of authority in § 994(b), which gives to the Commission all other "necessary" powers. The Plaintiff has failed to establish that the general grant of authority in § 994(b) was designed as a substantive limitation on the powers given in § 994(a). Therefore, the Commission is not limited to accepting voluntary services only when those services are "necessary," in the narrowest sense of the term.
However, even if the Commission were limited to using volunteers only in ways "necessary" to carry out its purposes, the Court concludes that permitting an Advisory Group to meet in private does not exceed that authorization. The fact that the Advisory Group does not open its meetings to the public does not render its existence ultra vires. The Court notes that the draft guidelines generated by the Advisory Group were made public, and initial comments on those guidelines were welcomed. Before any such guidelines may be promulgated in final form by the Commission, a formal notice and comment period must be set. See 28 U.S.C. § 994(x). Thus, the Commission's statutory requirements regarding notice will be complied with before any adoption of new sentencing guidelines. Merely because the Advisory Group conducts its meetings in private during the initial, informal generation of draft proposals does not exceed the statutory authorization of 28 U.S.C. § 995 or invalidate the Advisory Group, the creation of which is not challenged by the Plaintiff.
Upon consideration of the Defendants' and Plaintiff's Cross-Motions for Summary Judgment, the opposition thereto, the underlying record, and the applicable law, the Court concludes that the Advisory Group is not subject to the FACA because the Sentencing Commission is exempt from FACA coverage. Further, the common law right of access to public records does not extend to the internal, non-public documents of the Advisory Group. Finally, the Sentencing Reform Act authorizes the Commission to establish Advisory Groups to assist it in fulfilling the purposes of the Act without regard to whether the Advisory Groups conduct their proceedings in private. Consequently, the Court must grant the Defendants' Motion for Summary Judgment and deny the Plaintiff's Motion for Summary Judgment. The Court shall issue an Order of even date herewith consistent with the foregoing Memorandum Opinion.
July 7th, 1993
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE
JUDGMENT - July 7, 1993, Filed
Upon consideration of the Defendants' Motion for Summary Judgment, the Plaintiff's Motion for Summary Judgment, the applicable law, the record herein, and for the reasons articulated in this Court's Memorandum Opinion of even date herewith, it is, by the Court, this 7th day of July, 1993,
ORDERED that the Defendants' Motion for Summary Judgment shall be, and hereby is, GRANTED; and that Judgment in the above-captioned case shall be, and hereby is, entered for the DEFENDANTS; and it is
FURTHER ORDERED that the Plaintiff's Motion for Summary Judgment shall be, and hereby is, DENIED; and it is
FURTHER ORDERED that the above-captioned case shall be, and hereby is, DISMISSED from the dockets of this Court.
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE