The opinion of the court was delivered by: JOYCE HENS GREEN
Plaintiff, David L. Wilkinson ("Wilkinson"), filed a three-count second amended complaint in this action against defendant, Legal Services Corporation ("LSC"), pursuant to the Government in the Sunshine Act ("Sunshine Act"), codified at 5 U.S.C. § 552b, the United States Constitution, and the by-laws of the LSC. Presently pending are the parties' cross-motions for summary judgment and the motion of intervenor-defendant, the United States of America ("United States" or "Government"), for summary judgment as to Count Two. For the reasons expressed below, plaintiff's motions are granted as to Counts I and II, defendant's motions are denied as to Counts I and II, intervenor-defendant's motion as to Count II is denied, and Count III is mooted by the actions taken herein.
The facts are basically not in dispute. The LSC is a private, non-profit, tax-exempt corporation established by the Legal Services Corporation Act of 1974 ("LSC Act"), codified at 42 U.S.C. § 2996b. It provides financial support for legal assistance in certain non-criminal proceedings to persons throughout the United States who cannot otherwise afford legal assistance. The LSC Act provides that the LSC is subject to the provisions of the Sunshine Act, see 42 U.S.C. § 2996c(g), and, with slight modification, the LSC is subject to the procedural regulations of the Sunshine Act, codified at 45 C.F.R. §§ 1622.1-1622.10.
As IG, Wilkinson reported directly to the eleven member Board of Directors ("Board") that governs the LSC. The members of the Board, who are appointed by the President of the United States with the advice and consent of the Senate, serve a specific term of years, but the LSC Act states that each member of the Board shall continue to serve until a successor to that member is appointed and confirmed. See 42 U.S.C. § 2996c(b). Further, the by-laws of the LSC require each member of the Board to execute a "willingness to serve statement," which avows that they will discharge the required duties faithfully. One of these required duties is to elect the President of the LSC, who serves as chief executive officer subject to the Board's supervision.
On October 1, 1990, David H. Martin ("Martin") began his term as President of the LSC. Plaintiff alleges that from October 1990 to "at least" January 1991, Martin "assumed and exercised total power and control over management of the [LSC], on the asserted basis that there were no qualified members of the Board of Directors to whom he was required to report during that period." Second Amended Complaint P 4A. Wilkinson further alleges that Martin "conceived and initiated a scheme to get rid of other senior officials and employees of the [LSC], including the Vice President and General Counsel, the Secretary . . . and the Inspector General, and to hire personal friends in responsible positions at the [LSC]." Id.
On January 2, 1991, the President of the United States announced eleven recess nominations to the Board.
The eleven individuals were formally nominated on February 7, 1991, but were never confirmed by the Senate. Further, none of the eleven individuals signed a "willingness to serve" statement before February 22, 1991.
Prior to February 22, 1991, the Board retained outside counsel to advise it of its rights under Wilkinson's employment contract. By letter dated February 25, 1991, the LSC notified Wilkinson that his employment contract would not be extended beyond September 5 of that year. Subsequently, on March 25, the Board convened an executive session to meet with the outside counsel and discuss the matter of plaintiff's employment contract.
The second amended complaint has three counts. Count I alleges that the Board conducted meetings in private in violation of the Sunshine Act and the by-laws of the LSC, both of which require open meetings. Specifically, this count alleges that on January 28, 1991, February 22, 1991 and March 25, 1991, portions of the Board meetings were unlawfully closed to the public. Count II alleges that the members of the Board given recess appointments by the President on January 2, 1991 and formally nominated on February 7, 1991 did not have the power to act as Directors. In this count, plaintiff alleges that the Recess Appointments Clause does not apply to the LSC and that the Directors were never confirmed by the Senate. In Count III, plaintiff claims that the termination of his employment on September 6, 1991 was in violation of the by-laws of the LSC and the LSC Act.
The parties have each moved for summary judgment on all three counts. In addition, the United States has intervened as a defendant in this action and filed a motion for summary judgment as to Count II. Summary judgment is appropriate when there is "no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). "The inquiry performed is the threshold inquiry of determining whether there is a need for trial--whether, in other words, there are any genuine issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). In considering a motion for summary judgment, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255. At the same time, however, Rule 56 places a burden on the nonmoving party to "go beyond the pleadings and by [his] own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).
In Count I, plaintiff raises a number of procedural challenges to the closing of portions of the January 28, 1991, February 22, 1991 and March 25, 1991 meetings of the Board. Specifically, plaintiff alleges that: (1) there was no adequate or meaningful public notice of closure; (2) the votes used to close the meetings were done in violation of the by-laws; (3) the public explanations for the closed meetings were inadequate; (4) the general counsel was not given an opportunity to determine if the meetings were lawfully closed; (5) the transcripts of the meetings were not made open to the public or properly maintained; and (6) the LSC did not keep attendance records of the meetings. Defendant denies each of these alleged procedural irregularities and further claims that the questioned meetings were properly closed pursuant to Exemptions 2, 9(B) and 10 of the Sunshine Act and the attorney-client privilege.
Resolution of this count necessarily proceeds in two phases. First, it must be determined whether the claimed Sunshine Act exemptions or the attorney-client privilege apply to the questioned meetings. If any one of these justifications for public closure apply, then the procedural challenges must be evaluated.
As stated above, defendant claims that the subject meetings were properly closed to the public pursuant to Exemptions 2, 9(B) and 10 of the Sunshine Act. These claims must be analyzed in light of the policy of the Sunshine Act, which is that "the government should conduct the public's business in public." Common Cause v. Nuclear Regulatory Comm'n, 218 U.S. App. D.C. 262, 674 F.2d 921, 928 (D.C. Cir. 1982) (citation omitted); see Clark-Cowlitz Joint Operating Agency v. F.E.R.C., 255 U.S. App. D.C. 9, 798 F.2d 499, 501 (D.C. Cir. 1986) (en banc); Government in the Sunshine Act, ch. 409, 90 Stat. 1241 (1976) (declaring as the policy of the Sunshine Act that "the public is entitled to the fullest practicable information regarding the decisionmaking process of the Federal Government"). Toward this end, the Sunshine Act requires that every meeting of a federal agency be open to the public, although portions of a meeting may be closed if the discussions are "reasonably likely" to fall within one of the ten enumerated exemptions. Common Cause, 674 F.2d at 928; Philadelphia Newspapers, Inc. v. Nuclear Regulatory Comm'n, 234 U.S. App. D.C. 96, 727 F.2d 1195 (D.C. Cir. 1984). The exemptions, however, are to be narrowly interpreted and the agency bears the burden of proof on any claimed exemption. Common Cause, 674 F.2d at 928.
The first Sunshine Act exemption upon which defendant relies is Exemption 2. Exemption 2 permits an agency to close any meeting or any portion thereof at which information that "relate[s] solely to the internal personnel rules and practices of an agency" will be discussed. 5 U.S.C. § 552b(c)(2). Defendant claims that because any discussion regarding Wilkinson's position at the LSC is a "strictly internal matter," it falls within the purview of Exemption 2. Defendant Legal Service Corporation's Memorandum of Points and Authorities in Support of Motion for Summary Judgment ("Defendant's Mem.") at 19-20 (quoting H.R. Rep. No. 94-880 (Part I), 94th Cong., 1st Sess. 9 (1976)).
There is a dearth of case law interpreting Exemption 2 of the Sunshine Act. In Common Cause, however, our Court of Appeals noted that the language of Exemption 2 to the Sunshine Act "is virtually identical with that in Exemption 2 to the Freedom of Information Act" ("FOIA"). 674 F.2d at 937. That court further recognized that the "conference report on the Sunshine Act expressly adopts the standards of Dep't of Air Force v. Rose,. . . the leading Supreme Court decision interpreting Exemption 2 of FOIA." Id. In Department of Air Force, the Supreme Court, relying on the Senate Report to FOIA, interpreted Exemption 2 to include only "minor or trivial matters" and not "those more substantial matters which might be the subject of legitimate public interest." 425 U.S. 352, 365, 96 S. Ct. 1592, 48 L. Ed. 2d 11 (1976). Because any discussion of the employment status of high ranking officials at the LSC is not a "minor or trivial matter," Exemption 2 does not permit closure of any of the LSC meetings at issue.
The next exemption upon which the LSC relies is Exemption 9(B), which permits closure if the discussion at the meeting would "disclose information the premature disclosure of which would . . . be likely to significantly frustrate implementation of a proposed agency action." 5 U.S.C. § 552b(c)(9). Defendant asserts that this exemption applies because the Board discussed its assessment of plaintiff's bargaining position at the meetings, and public disclosure of this position would operate to the detriment of the LSC. Defendant's Reply at 7.
Although this exemption is difficult to interpret and, perhaps, more perplexing to apply, the LSC has not met its burden of justifying closure pursuant to Exemption 9(B). An analysis of this exemption must be mindful that the principle of narrow construction applies "with particular force to this exemption." Common Cause, 674 F.2d at 932. This is primarily because Congress deliberately excluded an exemption comparable to FOIA Exemption 5 (predecisional deliberations) from the Sunshine Act, and courts must be wary not to permit Exemption 9 to be used as a de facto equivalent of FOIA Exemption 5. Id. An Exemption 9(B) claim, therefore, is properly analyzed in reference to the four concrete examples of the application of this exemption in the House and Senate Reports. The examples referenced in the House and Senate Reports are (1) an agency considering an embargo on foreign shipments of certain goods; (2) an agency discussing whether to approve a proposed merger; (3) an agency proposing its strategy for an upcoming collective bargaining with its employees; and (4) an agency contemplating a purchase of real property. See Common Cause, 674 F.2d at 933. The common thread in these examples is that disclosure of the agency's proposals or bargaining position "could affect private decisions by parties other than those who manage the federal government," and the "private responses of such persons might damage the regulatory or financial interests of the government as a whole." Id. Any discussion of Mr. Wilkinson's employment status is much more akin to unprotected "predecisional deliberations" than to the actions protected by Exemption 9(B).
The final exemption upon which the LSC relies is Exemption 10. This exemption permits an agency to close a meeting if the discussion will address, inter alia, "the agency's participation in a civil action or proceeding". 5 U.S.C. § 552b(c)(10). There is no requirement that litigation be pending, provided adversarial proceedings are imminent. See Clark-Cowlitz Joint Operating Agency, 798 F.2d at 499. Defendant claims that "large portions of the January 28, 1991, February 22, 1991, and March 25, 1991 executive sessions were devoted to presentations by LSC'S chief legal officer concerning LSC'S involvement in pending litigation." Defendant's Reply at 8-9. Plaintiff does not dispute this assertion, insofar as LSC's counsel discussed then-pending or imminent litigation matters with the Directors. Plaintiff's Reply at 4. The LSC, however, has given no indication that any discussion regarding Wilkinson's employment status and any potential litigation spawned therefrom occurred at the meetings. Accordingly, Exemption 10 does not apply.
Finally, LSC claims that the attorney-client privilege shields disclosure of the meeting transcripts. This claim cannot be sustained. Congress did not include in the Sunshine Act an exemption similar to FOIA'S Exemption 5 for predecisional memoranda, which the Supreme Court has held to incorporate the attorney-client privilege. See NLRB v Sears, Roebuck & Co., 421 U.S. 132, 154, 44 L. Ed. 2d 29, 95 S. Ct. 1504 (1975). To permit the LSC to hide behind the shield of the attorney-client privilege would be an impermissible inclusion of FOIA Exemption 5 into the Sunshine Act or an unjustified extension of Exemption 10. See Clark-Cowlitz Joint Agency, 798 F.2d at 505 (Wright and Mikva, JJ., dissenting). ...