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By Stuart M.

Statler pendent federal agency responsible for

Let the
"Agency Hailed for Openness Now regulating the safety of some 15,000
Closing Some Meetings" blared the consumer products. Consumer advo
headline in the Washington Post of cates and public interest groups hailed
November 30, 1980. Back to business as the passage of the Consumer Product

Sunshine
usual. Behind closed doors, that is. Safety Act as a great victory.
Fat-cat lobbyists seducing regulators. The original commission attempted
The public be damned! to do more than simply protect the con

in?
This scenario makes for saucy stories sumer. It wanted to achieve this goal
of intrigue and a few splashes of jour while acting in the most open manner
nalistic ink, but it simply doesn't ring possible. The commissioners believed
true. To its proponents, openness in the agency should go beyond the legal
government is as American as moth But experience has not borne out all obligations to expose its decision mak
erhood and apple pie. But the fact is of the well-intentioned expectations of ing to complete public scrutiny.
that openness is neither a panacea nor the proponents of this legislation. Instead of weighing the competing
an end unto itself. It entails unantici Openness in government has left much values of consumer protection and
pated side effects that can work against to be desired. Its constraints frequently open decision making, the commission
the purposes it is meant to promote. For force decision makers to choose between simply assumed that total openness
all its virtues ? and they are consider competing, sometimes mutually exclu could be obtained without detracting
able ? openness in government is not sive, public policy goals. from its safety mandate. It was felt that
an unmitigated good. Distinguishing among these goals is openness could only enhance the qucl
A backlash against the perceived ex critically important. It is simply naive ity of decisions affecting consumer
cesses of closed decision making led to to believe that they can be achieved health and safety.
the enactment of two landmark pieces equally. To many, even suggesting a A few examples illuminate the
of legislation in the mid-1970s: the re-evaluation of the role of openness lengths to which the agency went in
Government in the Sunshine Act and raises the specter of closed, antidemo self-revelation:
an amended Freedom of Information cratic decision making. However, we Records must be kept of all tele
Act. These laws dramatically expanded must do just that. Without knowing the phone conversations by commissioners
the public's ability to delve into the relative costs and benefits, we cannot and staff with outside parties unless the
processes and inner sanctums of gov ascertain the over-all value of openness matter discussed is "trivial." The logs
ernmental decision making. in government. We need to examine its are available to anyone.
There can be little doubt about the practical consequences. Almost all meetings between
legislation's goals. If one accepts the The experience of one agency ? the agency staff and outside parties must be
premises that all who have a legitimate Consumer Product Safety Commission publicly announced at least seven days
interest in a decision should have equal ? provides a useful example from in advance.
access to the decision makers and that which broader conclusions can be Representatives of industry and the
all who would subvert the process de drawn about open government. media may enter any meeting between
serve to be discovered, what possible Created by Congress in 1972 at the staff and outsiders unless specifically
reason could there be for curtailing height of public distrust in govern excluded.
public scrutiny? ment, the commission is the sole inde To close such a meeting, a majority

CONFERENCE ROOM

Too much openness can spoil the chances for agencies to perform
the mandates given them by their creating legislation.

MEETING

Do nor
DI5TURB
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of the commissioners must determine proach to the commission, outline its ing could be scheduled. In the interim
that extraordinary circumstances exist, effectiveness, and defend it against the the industry issued a press release
with reasons set forth in a public calen snipings of others. The commission downplaying the potential risk. The
dar. could thus derive a clear sense of the commission ? instead of informing it
The inflexibility of the policy has led relative merits of the various devices. self immediately so that it could, if
the commission to circumvent the Unfortunately, however, the joint ef necessary, alert the American public to
spirit of its own openness strictures. fort ended in frustration. One common the risk ? waited to meet, only to find
For instance, special assistants are used criticism?voiced by industry-members itself reacting to distorted industry ac
as conduits to relay information among and agency staff alike ? was that the counts.
commissioners' offices, since the com glacial pace of the effort stemmed from This is not to say that the agency
missioners themselves cannot meet as a its total openness. There was much should have met hastily and reached a
group in closed session unless specific public posturing and little candor. Ex regulatory decision based on prelimi
exemptions apply. Closed meetings changes were stilted, causing distrust nary data. But, at a minimum, the
among commissioners' staffs become on both sides. Manufacturers' motives agency should have taken immediate
trial runs for the formal meetings. Del were questioned. They were wary about steps to learn about the new data. Wait
egating policy development to staff?in disclosing marketing plans or techno ing until all procedural niceties could
the interest of serving some obtuse no logical advances to competitors in at be observed only served to confuse the
tion of openness?vitiates the principle tendance. Breakthroughs by certain American public. It is ironic that when
of shared decision making at the top firms could not be discussed lest a the commission finally did conduct its
through a face-to-face interchange of competitive advantage be lost. De open meetings, not a single member of
ideas. served criticism of fellow industry the public attended.
A philosophy of total openness has members who were dragging their feet 3. Matters involving adjudication.
had certain adverse effects on the went unstated. Key sales and economic In addition to rule making, the C.P.S.C,
commission's substantive operations data were withheld. also adjudicates hazard matters involv
and on its record of accomplishments. In short, what might have been said ing specific firms whose conduct vio
By examining specific examples, we and accomplished in the privacy of a lates the law. Especially in cases in
can gauge this impact and its associ closed meeting was never said or dis volving recalls of products that present
ated costs. cussed. The lack of a complete and "substantial product hazards" under 15
1. Efforts to improve the safety of candid exchange and the consequent U.S.C. ? 2064, the commission seeks
chainsaws. Almost since its inception, two-year delay carried heavy costs for prompt redress. Yet the agency's han
the C.P.S.C, has been aware that tens of American consumers. Every day's dling of one case in 1980 points up the
thousands of people are injured every delay translated into preventable impediments to consumer safety when
year in accidents involving chainsaws. human pain and suffering. these matters are dealt with too openly.
After considerable study, the agency The issue is not open versus closed The case involved an electric fan asso
determined that "kickback"?an unex meetings but whether the process must ciated with numerous fires. The agency
pected rearing up of the saw toward the be totally open, at all stages, regardless sought to remove it from the market
operator ? caused a major share of of the result. In view of the safety man place.
chainsaw accidents. The staff began date of the commission, the tradeoffs At deliberations open to the public,
seeking ways, through design changes, become clear. On the one hand, limit staff urged a particular regulatory ap
to reduce kickback. ing access to the agency can have sub proach and various commissioners
In June, 1978, the C.P.S.C, began a stantial economic consequences for a challenged its wisdom. This put the
co-operative venture with the indus chainsaw manufacturer; on the other, manufacturer on notice that the com
try's trade group, the Chain Saw Manu delays in promoting safety because of mission itself was not completely per
facturers Association. The two groups openness constraints may have even suaded by the merits of the case, and
hoped to develop a voluntary safety more significant ? and tragic ? reper the firm learned what elements of the
standard. Over the next 18 months, cussions. proposed corrective action plan the
every meeting C.P.S.C, staffers held 2. Efforts to deal with for commission questioned. As any skilled
with the industry, individual firms, in negotiator can attest, telegraphing
maldehyde. Early in 1980 the C.P.S.C,
terested consumers, foreign manufac which elements of a position are firm
staff received information indicating
turers, technical experts, and other and which are not is tantamount to
that formaldehyde, a substance already
government officials was open and under review, may be carcinogenic conceding
in the latter.
held in a "fishbowl" environment: a rats. Although the data were sketchy,Although the commission eventually
meeting between two or three people staff acknowledged the news with worked
no out a voluntary recall plan with
being observed by a dozen or more. small degree of alarm because of for the company, a more far-reaching
Whatever action the commission ul maldehyde's importance as a basic agreement might have been achieved.
timately takes on chainsaws will have a Able to assess the C.P.S.C.'s perception
building block in industry. Some nine
huge impact on both industry and con of the strengths and weaknesses of the
billion pounds are produced yearly, the
sumers, affecting millions of dollars case, the offending firm gained an
bulk of it used in plywood, particle
and thousands of lives. With so much at enormous advantage. Openness en
board, and home insulation. It is also
stake, fairness dictates that anyone with found in permanent press shirts and abled it to opt for a lesser recall at the
a legitimate interest in the final deci certain shampoos and toothpastes. expense of the larger public interest.
sion have an opportunity to participate. Instead of meeting immediately with By contrast, a contemporaneous case
Different manufacturers have large in staff scientists to evaluate the data,
involving baby cribs reportedly tied to
vestments in diverse safety devices; commissioners opted to wait almost several infant deaths exemplifies the
each should be able to describe its ap two weeks until an open public meet advantages of limiting access when de

574 American Bar Association Journal

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bating strategy. Preventing additional leasing, in response to F.O.I.A. re special interests. Those attending our
deaths and injuries required a massive quests, accident reports identifying meetings and burying us with F.O.I.A.
recall effort. Toward that end, the specific brands and models of televi requests are the very ones against
C.P.S.C, needed as much leverage as sion receivers. A unanimous Court told whom the commission is considering
possible in negotiating with the manu the commission it could not disclose action. They are paid to do just that.
facturer. Since the firm failed to report the information without adequate In enacting the Sunshine and
promptly its awareness of the hazard, safeguards. Policy concerns other than F.O.I.A. legislation, Congress wanted to
the C.P.S.C. could assess a tidy civil openness were overriding. The lan give specific powers and tools to the
fine. The commission needed to bal guage, legislative history, and public public to guard against undue influ
ance carefully the trade-off between a policy consequences of the Consumer ence by special interests. Yet the very
reporting penalty and a comprehensive Product Safety Act led the Court to interests meant to be watched over have
corrective action plan. It was vital to conclude that the commission must become the watchdogs. They, not the
have a frank, free-flowing discussion of take steps to assure that any informa public, most often reap the benefits of
all the options, without tipping the tion disclosed is "accurate" and "fair in openness, and at very high cost to the
agency's hand. the circumstances." In other words, ability of government agencies to do
The commission availed itself of an fairness to the TV firms that submitted what is expected of them.
exemption to the Sunshine Act de the data was the paramount policy con Balancing competing considerations
signed to protect potential litigation cern, instead of unqualified public dis within a governmental agency is no
strategy, and it met behind closed closure. easy task. But regulatory agencies must
doors. All options and trade-offs were While the ruling will place an enor accord top priority to their substantive
candidly reviewed. As a result, the mous burden on the C.P.S.C, to assure mandates, to what Congress originally
agency secured one of the most wide the accuracy of information prior to re asked of them, to their raison d'etre.
ranging, innovative recalls in its his lease, there may be a hidden benefit. Adding other laudable aims to their
tory and a large civil fine to boot. But Firms and industries are more likely to task ? openness, among them ? has
had those strategy meetings been held submit sensitive data when they under taken its toll. At times the added bur
in the open, the scope of the dis stand that it will be adequately pro dens have impaired the ability of these
cussions would have been sharply cur tected from misleading disclosure. agencies to accomplish their primary
tailed and the ensuing recall far less Armed with more complete informa mandates. Even praiseworthy means,
advantageous to consumers. tion, the agency should be able to reach such as open decisions openly arrived
4. Public disclosure of product in more informed decisions on product at, do not justify poor regulatory re
formation. The C.P.S.C.'s commitment hazards. sults.
to openness also embraces the Freedom When a formal regulatory decision is
of Information Act, which is meant to at hand,, openness should be preserved
provide public access to government Openness isn't worth to the extent possible. Those decisions
records. Commission policy provides
the cost may have major financial or social
extraordinary access, making disclo in some instances ramifications. They can affect so many
sure the rule and withholding the ex persons in so many significant ways
ception. Unlike most other agencies, Openness serves two principal pur that it is important for all affected par
only rarely does the commission invoke poses. First, it reduces the possibility of ties to observe and participate in the
the act's discretionary exemptions. any impropriety or the appearance of it. process. But when an agency is simply
In theory, widespread disclosure of Second, open access permits anyone exploring issues devoid of any im
information increases public under who shares a stake in the decision to mediate regulatory impact ? and espe
standing of an involvement in agency present a point of view. But accom cially at an early or preliminary stage?
decision making. But in practice, the plishing these two aims is not suffi unfettered discussion should be en
agency's mandate to protect consumers cient. They only help achieve the other couraged. If candid dialogue is inhib
has been compromised. For example, in policy goals on which agency perform ited by openness and the overriding
May of 1980 the commission voted ance is judged. But it is these goals?in public interest does not suffer from any
three-two to release laboratory results the case of the C.P.S.C., preventing ac one person's exclusion, then preserving
of certain cellulose insulation tests. cidental injury and death ? that are openness in those circumstances may
Disclosure identified levels of non paramount. When agencies substitute be unwarranted.
compliance that trigger enforcement process for purpose, they ignore the We need first to identify those areas
action. Because it has a small staff and very reason for their existence. that must be open and those in which it
limited resources, the C.P.S.C. must use It is important to ask, moreover, who is less important. It is time to reassess
discretion in enforcing its standards. benefits from the constraints imposed the true benefits and costs of openness
Industry's awareness of our enforce by openness. Theoretically, "the pub in government decision making. By all
ment strategy undercuts future en lic" does. In practice, however, open means, let the sunshine in?remember
forcement activity, as well as the credi ness too often serves the narrow pur ing always, however, that too much of a
bility of the standard itself. poses of special interests. Do.the news good thing can be harmful. Inumai
Another conflict between F.O.I.A. media flock to our meetings? Do the
openness and other important policy public interest groups vie for seats in (Stuart M. Statler is acting chairman
goals is pointed up by a decision of the packed hearing rooms? Do interested of the Consumer Product Safety Com
United States Supreme Court in consumers wait in line to hear debates mission and formerly was chief minor
C.P.S.C. v. G.T.E. SyJvania, 100 S.Ct. on the hazards they face? Hardly. ity counsel of a subcommittee of the
2051 (1980). The television industry But, without fail, you'll find lawyers Senate Committee on Governmental
sought to enjoin the C.P.S.C. from re and lobbyists galore, all representing Affairs.]

May, 1981 ? Volume 67 575

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Let the Sunshine in?
Author(s): Stuart M. Statler
Source: American Bar Association Journal, Vol. 67, No. 5 (May, 1981), pp. 573-575
Published by: American Bar Association
Stable URL: http://www.jstor.org/stable/20747130
Accessed: 25-10-2017 09:06 UTC

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