TABLE OF CONTENTS
I. BACKGROUND. --------------------------------------------------- 1224
A. The Closed CP Meetings ------------------------------------ 1224
B. The Rulemaking Proceeding --------------------------------- 1226
C. The District Court Action --------------------------------- 1228
II. THE Ultra Vires COUNT ----------------------------------------- 1229
A. Subject Matter Jurisdiction ------------------------------- 1229
B. Standing -------------------------------------------------- 1231
C. Ripeness -------------------------------------------------- 1232
III. THE FOIA COUNT ------------------------------------------------ 1233
A. Material Pertaining to Commission
Docket Proceedings ---------------------------------------- 1234
B. Material Preparatory to the CP Discussions ---------------- 1236
C. Material Reporting the CP Discussions ---------------------- 1238
IV. THE SUNSHINE ACT COUNT ---------------------------------------- 1239
A. The Authorization Requirement ------------------------------ 1240
B. "Conduct or Disposition of Official
Agency Business" ------------------------------------------- 1241
1. "Official Agency Business" ------------------------------ 1241
2. Meetings "of" the Agency -------------------------------- 1242
3. "Informal Background Discussions" ----------------------- 1243
C. Policy Arguments -------------------------------------------- 1244
V. THE RULE/LAKING DENIAL ---------------------------------------- 1245
A. The Sunshine Act -------------------------------------------- 1246
B. The Commission's Authority --------------------------------- 1246
C. Delegation of Authority to the Telecommunications
Committee --------------------------------------------------- 1248
CONCLUSION ------------------------------------------------------- 1249
Opinion for the Court filed by Senior Circuit Judge BAZELON.
BAZELON, Senior Circuit Judge:
These appeals present a variety of important questions arising under the Communications Act of 1934,1 the Freedom of Information Act ("FOIA"),2 the Government in the Sunshine Act ("Sunshine Act"),3 and the Administrative Procedure Act ("APA").4 The issues all grow out of a series of international conferences organized by the Federal Communications Commission ("FCC" or "Commission"). Since 1974, the FCC's Telecommunications Committee ("Committee") has periodically met with representatives of foreign telecommunications administrations and carriers to discuss matters of common concern, particularly the planning of shared facilities. These gatherings, known as "consultative process" ("CP") meetings, have routinely been transcribed and open to all interested parties, including representatives of American carriers. Beginning late in 1979, however, the Committee moved to expand the focus of the CP meetings and to exclude American carriers from the expanded discussions.5
One of the excluded carriers, ITT World Communications, Inc. ("ITT"), has since engaged in a two-front campaign to have these meetings reopened. The present appeals concern both prongs of that campaign. In Numbers 80-2324 and 80-2401, ITT appeals a judgment of the district court dismissing its complaint that the Committee's actions at the closed meetings are ultra vires. The Commission cross-appeals accompanying judgments rendered against it under FOIA and the Sunshine Act.6 In Number 80-1721, ITT petitions for review of a Commission order denying its petition for a rulemaking that would establish regulations governing the conduct of the CP.7
For the reasons set forth below, we
(1) reverse the district court's dismissal of ITT's ultra vires complaint and remand for further proceedings;
(2) affirm in part, reverse in part, and remand in part the district court's order directing the Commission to disclose all materials identified in response to ITT's FOIA request;
(3) affirm the district court's determination that the CP meetings are governed by the provisions of the Sunshine Act; and
(4) reverse in part and remand in part the Commission's rulemaking denial.
A. The Closed CP Meetings
International record service8 has long been dominated, at the American end, by four firms known as the International Record Carriers ("IRCs").9 ITT is one of those carriers.10 In an effort to foster greater competition in this field,11 the Commission in 1977 authorized two smaller common carriers, GTE Telenet Communications Corp. ("Telenet") and Graphnet Systems, Inc. ("Graphnet"), to offer specialized international service.12 The Commission's competition policy, however, has met a formidable obstacle: American carriers obviously cannot provide international service without links to correspondent carriers abroad,13 and to date Telenet and Graphnet have been unable to secure interconnection agreements with European administrators.14 The foreign administrations apparently oppose greater competition in the private sector, preferring instead to deal exclusively with the established American carriers.15
In response, the Commission in 1979 turned to the consultative process as a forum for encouraging foreign cooperation with the newly authorized carriers. The CP had been initiated five years earlier as a means to exchange and discuss technical information related to the operation of jointly owned communications facilities; meetings were transcribed and open to all interested parties.16 At the October 1979 CP meeting in Dublin, Ireland, however, the Telecommunications Committee persuaded its foreign counterparts to expand the meeting's focus to include "the United States' authorization of new telecommunications services and carriers," and to exclude representatives of American carriers from this part of the meeting.17 In addition to the Dublin meeting, a February 1980 meeting in Ascot, England, and an October 1980 meeting in Madrid, Spain, were closed during discussions of this topic.
The specific nature of these off-the-record discussions is sharply contested and cuts to the heart of these appeals. Conceding that "international negotiation is the province of the State Department,"18 the Commission characterizes the closed encounters as merely "informal talks" that, like the public CP meetings, facilitate "the exchange of information and views."19 More precisely, the sessions are designed "to improve foreign understanding of the bases for and the nature of our pro-competition policies and, at the same time, to increase our knowledge of any unique telecommunications problems or policies which may exist in a particular country."20 According to the Commission, the Committee does not officially lobby on the Commission's behalf: To the extent that "some commissioners have encouraged the foreign entities to cooperate with the policies of the FCC," as opposed to merely informing them of Commission policies, "these comments represent the personal views of the Commissioners, not official agency policy ...."21
ITT argues that the Committee's efforts at the closed meetings constitute negotiation, and there is considerable evidence that would appear to contradict the Commission's characterization of the discussions as mere unofficial "information exchanges." First, the Commission concedes that Committee members attend CP meetings in their official capacities,22 and indeed argues that their attendance is necessary to discharge its statutory duty to regulate international communications.23 Second, Commission representatives have described the closed exchanges as a "mechanism" to "narrow differences and to move toward consensus ... on common principles and approaches";24 the Commission acknowledges that such consensus is designed to "lead ultimately to operating agreements for ITT's competitors."25 Finally, ITT presents evidence that the Commission has used the meetings as a forum to advise foreign administrations of a linkage between their cooperation with the newly authorized American carriers and the Commission's receptivity to their needs in other areas.26
B. The Rulemaking Proceeding
ITT filed a petition for rulemaking on October 29, 1979. After questioning the Commission's authority to meet privately with foreign administrations on behalf of individual American carriers, ITT proposed that if such contacts continue they should be governed by published rules of policy and procedure. Such rules, it argued, are necessary to guard against Commission prejudgment of pending and future proceedings, to protect against ex parte influences, to ensure an effective record for judicial scrutiny of any disputes growing out of the meetings, and generally to enhance the quality of the CP exchanges.
ITT characterized its proposed rules as addressed to "the what" and "the how" of CP meetings.27 With respect to "the what," ITT proposed that the Commission (1) "expressly disclaim any intention to negotiate with foreign administrations";28 (2) delineate the authority of commissioners attending CP meetings; and (3) direct commissioners to refrain from discussing pending proceedings at the meetings or "advancing the interest of one American carrier or service at the expense of any other."29 With respect to "the how," ITT proposed that the Commission (1) require the transcription or recording of all CP meetings; (2) open the meetings to the public in accordance with the requirements of the Sunshine Act; (3) provide comprehensive notice-and-comment procedures prior to the meetings;30 and (4) provide an opportunity for interested parties to make oral or written presentations at the meetings.
After receiving comments and reply comments,31 the Commission on May 2, 1980, released its order denying ITT's petition. The Commission addressed itself to four issues:
(1) whether the Commission has engaged in "negotiations"; (2) whether the Commission has statutory power to make any contacts with foreign governments or telecommunications entities; (3) whether the Government in the Sunshine Act is applicable; and (4) whether there are ex parte and other due process questions involved here.32
The Commission devoted a substantial part of its discussion to the first issue. Characterizing the closed discussions as "[i]nformal talks ... to improve foreign understanding,"33 it insisted that it had not ventured "into the area of formal international negotiation."34 According to the Commission, negotiation "connotes a formal diplomatic process for the development and formulation of various kinds of binding executive agreements and treaties."35 The parties at the CP meetings, however, have not formulated such accords. Moreover, "participants in such negotiations ordinarily have authority to speak for their respective countries and to commit them," subject to formal ratification procedures.36 The Telecommunications Committee, on the other hand, has no authority to bind our government to any agreements. This lack of negotiating authority, the Commission added, is clearly understood by foreign administrations.
Turning to its authority to engage in informal talks, so construed, the Commission concluded that "contacts with foreign administrations are not only permissible but are encouraged by the Communications Act."37 Citing sections in the Act that grant it authority to license international communication by wire and radio,38 the Commission characterized the discussions as a means to "advance our progress toward realization of statutory goals" and as "a necessary and natural corollary" of its statutory authority.39
The Commission then considered whether the CP discussions are "meetings" within the meaning of the Sunshine Act. The Act defines a "meeting" as "the deliberations of at least the number of individual agency members required to take action on behalf of the agency where such deliberations determine or result in the joint conduct or disposition of official agency business."40 The Commission concluded that, for two reasons, this definition does not encompass the consultative process. First, the presence of at least four of the seven commissioners — a quorum — is required for the Commission to transact business, unless it delegates authority pursuant to 47 U.S.C. § 155(d)(1) (1976).41 The Commission has not delegated authority to the Committee to act on its behalf at the CP sessions, however, and because only three commissioners sit on the Committee, the threshold requirement of an authorized quorum has not been met. Second, because informal exchanges of information are not a "deliberative process," the Committee's activities do not constitute "the joint conduct or disposition of official agency business."
The Commission concluded that "[m]ost of ITT's remaining arguments are in reality addressed to the advisability, rather than the legality, of informal discussions with foreign administrations."42 It labelled ITT's prejudgment and ex parte arguments as "speculative," and argued that existing rules adequately protect against these dangers.43
The Commission did, however, announce that as a discretionary matter it would (1) provide a notice-and-comment period on the time and place of each individual meeting, the persons expected to attend, and the topics to be discussed; (2) open the meetings to observers "unless it is determined that circumstances exist which warrant closure";44 and (3) hold public briefings before and after the meetings. The Commission emphasized that "[t]hese procedures are flexible, and we expressly reserve the right to depart from them where necessary to accommodate any special circumstances which may arise with respect to a specific conference."45
This petition for review followed. ITT maintains that the Commission's order denying its rulemaking petition is arbitrary, capricious, an abuse of discretion, and contrary to law.
C. The District Court Action
ITT filed this action on February 12, 1980, while the Commission was considering its rulemaking petition.46 Its complaint asserts three claims for relief:
Count I ("the ultra vires count") alleges that the Commission has used the closed CP meetings to negotiate with foreign governments on behalf of ITT's competitors, and it asserts that the alleged negotiations "are unlawful and ultra vires, and in excess of the authority conferred on the FCC by the Communications Act."47 The count asks for declaratory and injunctive relief.
Count II ("the FOIA count") seeks disclosure under FOIA of a number of documents pertaining to the regulation of international record service.
Count III ("The Sunshine Act count") alleges that the Telecommunications Committee's participation in the closed CP discussions violates the Sunshine Act's open meeting rules.
The Commission moved for dismissal or summary judgment, and ITT cross-moved for summary judgment on the FOIA and Sunshine Act counts. The district court (1) dismissed the ultra vires count, holding that ITT did not have standing to secure judicial review and that the issue was not ripe for adjudication; (2) granted ITT's motion for summary judgment on the FOIA count, holding that the Commission had failed to substantiate its claim of "deliberative process" privilege with respect to the disputed documents; and (3) granted ITT's motion for summary judgment on the Sunshine Act count, holding that the CP discussions are "meetings" within the meaning of the Act.
ITT appeals the district court's dismissal of the ultra vires count. The Commission cross-appeals the court's summary judgment on the FOIA and Sunshine Act counts. Because our review of the district court action sheds considerable light on issues presented by the rulemaking denial, we first consider in turn the three counts of ITT's complaint.
II. THE Ultra Vires COUNT
The district court "seriously doubt[ed]" whether it had subject matter jurisdiction over the ultra vires count.48 It did not reach this issue, however, dismissing instead on standing and ripeness grounds. We conclude that the district court's reservations about its jurisdiction were unfounded and that it erred in its rulings on standing and ripeness.
A. Subject Matter Jurisdiction
ITT argues that the district court has jurisdiction to hear the ultra vires claim under 28 U.S.C. § 1331 (1976 & Supp. V 1981), the general grant of federal question jurisdiction. The Commission counters that jurisdiction over the issue lies exclusively with this court as part of our review of the order denying ITT's petition for rulemaking. Invoking 28 U.S.C. § 2342(1) (1976) and 47 U.S.C. § 402(a) (1976), which together grant exclusive jurisdiction to review FCC final orders to the courts of appeals, the Commission argues that the ultra vires count is a collateral attack against that part of its order defining the scope of its authority to meet with foreign administrations. District court intervention, the Commission contends, would therefore circumvent the prescribed review procedure and require an "unwarranted duplication of the work of the Court of Appeals."49
A strong presumption against concurrent district court jurisdiction would be appropriate if the issues presented by ITT's rulemaking petition and its ultra vires count were indeed identical.50 The Commission's argument, however, blurs an important distinction between the rulemaking petition and the ultra vires count. The petition asked the Commission for a declaration of the nature of its authority with respect to the CP meetings and argued that "negotiation" is outside the scope of that authority. The Commission fully agreed that it has no authority to negotiate, but it disagreed as to the necessity of rules spelling out this lack of authority with greater clarity. The gravamen of the ultra vires count is very different. There ITT asserts that the Commission, irrespective of what it acknowledges as the proper scope of its authority, has in fact secretly exceeded that authority and will not admit to having done so. Contrary to the Commission's argument that "[t]he specific content of the CP meetings is only evidence for [the] general issue" of the scope of its authority,51 the "content" of the meetings is itself the issue.
We have emphasized that the jurisdiction of the district courts is properly invoked where de novo judicial factfinding is necessary for a fair examination of the disputed issues.52 The instant controversy presents a paradigm of this circumstance. Rather than call for review of an agency action that has itself been embodied in a record, the ultra vires count requires scrutiny of conduct occurring outside the formal administrative process. The agency "record" in the rulemaking denial, which consists simply of the Commission's conclusory assertions that it has not negotiated and of certain statements by Commission officials that contradict these assertions, is manifestly inadequate for such an evaluation.53 ITT's colorable ultra vires claim can therefore be tested only through the kind of independent, de novo factfinding appropriate in the district court.54
The Commission seems to argue, however, that even if its instant order does not provide a suitable vehicle for review, future agency actions based on its alleged ultra vires conduct would, so that district court intervention would nevertheless be unwarranted. Thus, the Commission asserts that if it "take[s] some action detrimental to ITT in the future, as a quid pro quo for European cooperation today," ITT "would have the opportunity ... to challenge that action and its basis" in a statutory review proceeding.55
Again, however, the Commission misstates the focus of ITT's allegations. Where an agency action is not reviewable in the courts of appeals, district court jurisdiction may nevertheless be inappropriate if the action is interlocutory in nature and can be corrected on court-of-appeals scrutiny of a subsequent, final action.56 We have emphasized, however, that such preclusion of district court review is inappropriate where the challenged action would be "beyond the capabilities of the statutorily-prescribed methods of review to repair."57 Such a danger of "irretrievable subversion" of ITT's "substantial rights"58 is readily apparent in this case. The Committee's activities at the CP meetings are not calculated to result in a final order, but rather to lead to unreviewable action by foreign administrations. Thus, as we discuss more fully in Part II-C below, subsequent judicial or administrative proceedings would not likely provide an adequate remedy for the Commission's alleged misconduct. The district court therefore has subject matter jurisdiction over the ultra vires count.59
Under the Administrative Procedure Act, a party has standing to secure judicial review of any "agency action" that causes a "legal wrong."60 The district court held that ITT has not suffered a legal wrong, reading its complaint solely to allege a violation of the Logan Act's prohibition of unauthorized negotiation with foreign governments.61 Because only the Department of State is aggrieved by violations of that criminal statute, the court reasoned, ITT's alleged injury is not legally cognizable.
We respectfully conclude that the district court misread ITT's complaint. The gravamen of ITT's allegation is quite specific: "The activities of the FCC ... are unlawful and ultra vires, and in excess of the authority conferred on the Commission by the Communications Act."62 Whether the complaint's two references to the Logan Act63 should be construed as an attempt to state a separate cause of action (as the Commission insists) or as mere illustrative matter not intended to assert a claim (as ITT argues), a cause of action under the Communications Act has clearly been alleged.
As a regulated carrier, ITT has standing to complain of ultra vires Commission actions that threaten it with competitive injury.64 If ITT's allegations are correct,65 the Commission is engaged in a course of conduct that clearly rises to the level of reviewable "agency action."66 If successful, that action will cause substantial injury to ITT's economic interests.67 Moreover, there can be no question that the interests sought to be protected by ITT are within the Communications Act's broad zone of protected interests.68 The Commission's argument that ITT has no right to avoid enhanced competition misses the mark. ITT has standing to insist that the Commission implement its competition policy in a manner that does not exceed its authority under the Communications Act.69
The district court held that the ultra vires count was not ripe for adjudication, reasoning that "[t]he two new carriers have not yet been accepted by the foreign entities. When and if they are so accepted, Plaintiff can object through the formal rulemaking process, and derive relief if its claim is cognizable and meritorious."70
This holding is flawed under familiar ripeness doctrine, which requires an evaluation of (1) "[t]he fitness of the issues for judicial decision," and (2) "the hardship to the parties of withholding court consideration."71 The Committee has already engaged in three closed meetings with foreign administrations. The threatened injury to ITT resulting from these encounters does not depend on other types of Commission action. The issue whether the Committee's efforts at the meetings were unlawful is therefore eminently fit for judicial consideration.
Moreover, contrary to the district court's reasoning, a subsequent judicial proceeding would not likely provide an adequate remedy for the Commission's alleged misconduct.72 Actions by foreign administrations obviously could not be overturned in American fora, and the new carriers' certificates of public convenience and necessity, awarded before the Committee began to meet privately with foreign administrations, could not be revoked on the basis of subsequent Commission misdeeds. In addition, prospective rulemaking after the foreign administrations had acted could not undo the harm that ITT seeks to prevent: coerced entry of foreign administrations into agreements with Telenet and Graphnet. The ultra vires issue is therefore ripe for judicial consideration.73
III. THE FOIA COUNT
Three days after the first closed meeting in Dublin, ITT requested the Commission to identify and release all agency communications "with respect to dealings or possible dealings between foreign correspondents and U.S. carriers not now providing international services through direct connections with foreign correspondents."74 The Commission released eight items but withheld fifteen others.75 After exhausting its administrative remedies,76 ITT brought this action to compel disclosure of those items.
The Commission relies exclusively on the executive "deliberative process" privilege embodied in 5 U.S.C. § 552(b)(5) (1976) ("Exemption 5"), which protects from disclosure "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with an agency."77 To sustain its burden of proof,78 the Commission submitted an index to the documents, five affidavits, and a memorandum of points and authorities.79
The fourteen items still being withheld80 fall into three broad categories:
(A) Seven items do not pertain directly to the CP meetings, but instead to specific docket proceedings concerning carrier authorizations and facilities planning.81
(B) Six items are background memoranda and draft statements for the use of commissioners in their contacts with foreign administrations.82
(C) One item is a compilation of staff members' notes reporting the substance of the CP discussions in Dublin.83
The district court granted ITT's motion for summary judgment and ordered the Commission to release all fourteen items. The court's analysis was limited to one short paragraph:
In the instant case, the FCC cites no specific policy or process in order to protect the documents in question. In fact, they [sic] consistently defend the Consultative Process as a means of receiving information without having to formulate policy or utilize United States regulatory jurisdiction.... Upholding the use of Exemption 5 in the instant case "would go a long way toward undercutting the entire Freedom of Information Act," ... and detract from the Act's dominant objective of disclosure.... The documents at issue herein must be disclosed.84
We have recurrently emphasized that "District Court decisions in FOIA cases must provide statements of law that are both accurate and sufficiently detailed to establish that the careful de novo review prescribed by Congress has in fact taken place."85 Our review of the materials submitted by the Commission leads us to conclude that the district court's evaluation of the instant items did not reflect the quality of de novo review required by this standard. With respect to the documents listed in categories (A) and (B), we accordingly reverse the district court's disclosure order and remand for additional de novo proceedings.86 Our decision does not apply to item 7, however, for we conclude that the Commission failed to carry its burden of establishing its right to withhold any of the material therein. Turning to the item listed in category (C), we conclude that the Commission has failed to carry its burden of proof, and we accordingly affirm the district court's disclosure order with respect to that item.
A. Material Pertaining to Commission Docket Proceedings
With one exception, each of these seven items was prepared by staff attorneys or engineering assistants to advise Commission officials on pending docket proceedings.87 Item 4 is a legal analysis of the "Applicability of Resale Decision to international communications market," and gives advice and opinions on the applications of Graphnet and Telenet to extend their services to overseas markets.88 Item 9 recommends how the Commission should modify the Graphnet authorization to comply with a recent judicial decision.89 Item 11 advises a commissioner how he should vote on a proposed authorization of a new transatlantic communications cable.90 Item 12 contains similar recommendations regarding Commission authorization of a new communications satellite.91 Item 13 contains, inter alia, recommendations on factors the Commission should consider when ruling on carrier applications, and analyses of issues raised by carriers in pending docket proceedings.92 Item 14 analyzes a tariff filing by the American Telephone and Telegraph Company and recommends how the Commission should respond.93 Item 15 contains recommendations on whether the Commission should have a national security briefing by the Department of Defense in connection with a proposed transatlantic cable authorization.94
With respect to these items, the district court's sweeping assertion that "the FCC cites no specific policy or process in order to protect the documents"95 is clearly erroneous. The items bear all the indicia of predecisional status.96 They were written by subordinate agency personnel to advise Commission officials on issues presented in pending docket proceedings. The authors themselves had no decisionmaking authority; their memoranda were "recommendatory" and "deliberative in nature, weighing the pros and cons of agency adoption of one viewpoint or another."97 The items contain suggestions that could "be freely disregarded";98 rather than expressing "the law itself," they simply contain "the ideas and theories which go into the making of the law."99 Thus, the deliberative material in these items is without "precedential significance" and cannot be considered "secret law."100 Finally, the Commission did not expressly adopt any of the material in these items when it issued its final decisions in the relevant proceedings.101
We therefore reverse the district court's judgment ordering the disclosure of items 4, 9, 11, 12, 13, 14, and 15. In accordance with previous cases, we remand to the district court for de novo factual determinations of two segregability issues.102
First, the deliberative process privilege does not protect "purely factual material appearing in ... documents in a form that is severable without compromising the private remainder of the documents."103 On remand, the district court must ensure that only deliberative material in these items is withheld.
Second, the privilege does not protect material that merely sets forth official agency views and practices with respect to the interpretation and implementation of existing policies.104 To the extent that some of the material in these items may "`embody the agency's effective law and policy,'"105 the district court must be certain that it is excised and released.
These determinations may well require the district court to "examine the contents of [the items] in camera to determine whether such records or any part thereof shall be withheld" under Exemption 5.106 The court should also take care to provide a sufficiently detailed analysis to enable thorough appellate review.
B. Material Preparatory to the CP Discussions
There are six items in this category. Items 2 and 3 are drafts of telexes sent by Commission Chairman Charles Ferris to his Swedish and Canadian counterparts.107 Items 5, 7, 8, and 10 are background memoranda for the use of commissioners attending the CP meetings, and are generally claimed to contain "recommendations" and "options" on issues to be discussed, and "proposed responses should the parties reject" Commission proposals.108
ITT argues, and the district court agreed, that because the Commission contends that the CP meetings themselves are not deliberative or decisional in nature, material preparatory to the meetings cannot be withheld. We agree that the Commission has engaged in much obfuscation about the substance of these discussions. It has, however, consistently stated that the meetings involve the exchange of information and views concerning its competition policy. There is an important distinction between the commissioners' actual statements and the drafts and background memoranda from which those statements emerged. The commissioners' remarks were statements of proposed action109 and explanations of agency positions110 that, as we discuss below, are not exempt from disclosure.111 The instant items, on the other hand, are the raw materials that went into the formulation of those remarks. Like the items discussed in part III-A, they are documents from subordinates to superiors that are merely recommendatory in nature.112 We have held that "internal self-evaluation[s] ... about the relative merits of various positions which might be adopted" in agency dealings with the public normally fall within the deliberative privilege; this protection extends to "discussion of the merits of past efforts, alternatives currently available, and recommendations as to future strategy."113
Moreover, the policies behind the deliberative privilege apply in full force to this advisory material. Disclosure might well discourage subordinates from "provid[ing] ... their uninhibited opinions and recommendations without fear of later being subject to public ridicule or criticism."114 Disclosure might also "confus[e] the issues and mislead the public by ... suggesting reasons and rationales for a course of action which were not in fact the ultimate reasons for the agency's action."115
We therefore reverse the district court's disclosure order with respect to most of these items. We have examined the final telex that resulted from the drafts in item 2;116 it consists entirely of policy proposals, and we see no purpose in remanding for further factual findings. With respect to items 3, 5, 8, and 10, however, we remand to the district court for segregability determinations in accordance with our discussion in Part III-A.
We emphasize an important caveat. A consistent assumption running through judicial decisions permitting nondisclosure of deliberative material has been that the actual policy or legal positions adopted will be disclosed to the public.117 The district court should be certain that the disclosed documents and other material will provide the public a sufficient view of the Committee's efforts at the CP meetings. If they do not, release of some of the material in these items, to the extent that it reflects positions actually taken, may well be necessary to give the public an adequate understanding of the Committee's activities.
Our decision does not apply to item 7.118 The affidavit submitted by its author stated simply that the document "contained my thoughts on what information would be useful to the Commissioners in discussing" two issues at the Dublin conference.119 This characterization could easily extend to simple summaries of factual information, which, as we discuss below, are not exempt from FOIA disclosure.120 The Commission therefore failed to carry its burden of establishing any right to withhold this document,121 and we affirm the district court's judgment ordering its disclosure.
C. Material Reporting the CP Discussions
Item 1 is a compilation of staff members' notes reporting the substance of the closed CP exchange at Dublin.122 We affirm the district court's decision that this material must be released.
Communications between agency members and persons from outside the agency generally are not protected by the deliberative process privilege.123 Because these notes embody such communications, they cannot acquire predecisional status simply by virtue of being circulated within the agency. Moreover, reports of extra-agency discussions are factual in nature; courts have long emphasized that factual material usually is not exempt from disclosure.124 And unlike the background evaluative material discussed above, commissioners' comments that may be reported in these notes are actual explanations of the Commission's policies and actions. Although the public has only a marginal interest in the release of inter-Commission material debating positions to be taken at international conferences, it has a substantial interest in knowing the positions that Committee members actually take.125
The Commission advances three rationales against disclosure. First, it argues that "[s]uch notes are evaluative, because the persons making them were not secretaries or other neutral observers, but were FCC staff attorneys, who can be expected to write down only those comments made by speakers at the meeting that they feel are significant."126 This argument is similar to one we recently considered — and rejected — in Playboy Enterprises, Inc. v. Department of Justice.127 In that case, the government argued that a Justice Department investigative report reflected the "choice, weighing and analysis of facts," and was therefore protected from disclosure by the deliberative privilege.128 We responded:
Anyone making a report must of necessity select the facts to be mentioned in it; but a report does not become a part of the deliberative process merely because it contains only those facts which the person making the report thinks material. If this were not so, every factual report would be protected as a part of the deliberative process.129
Like Playboy Enterprises, this case is distinguishable from suits seeking disclosure of staff summaries of record evidence in adjudicatory and rulemaking proceedings.130 The courts in such cases have found that, where analyses are prepared for the sole purpose of evaluating the relative factual merits of different positions in pending proceedings, disclosure would invite "probing [of] the decision-making process itself."131 Here, on the other hand, the Commission has cited no specific pending proceeding for which the notes were compiled, and in any event it has presented no evidence that the notes are evaluative in nature rather than straightforward factual narrations.
The Commission argues, however, that the notes "may be used by the staff in making recommendations to the Commissioners concerning future consultative meetings."132 We have rejected this sort of sweeping argument before. Such an interpretation would "swallow up a substantial part of the administrative process" and "would result in a huge mass of [factual] material being forever screened from public view."133 It is not enough for an agency to assert that factual material "may be used" in future deliberations; the agency must demonstrate that the material at issue is inextricably intertwined with a specific deliberative proceeding.134
Finally, the Commission asserts that these notes are protected by the "related governmental privilege" that protects "information provided to the government by persons who would not provide information unless given a promise of confidentiality."135 We need not consider the scope of this exemption,136 however, for the Commission provided no evidence to the district court that confidential treatment had actually been promised to the foreign participants or that the foreigners would not otherwise have met with the Committee to discuss the Commission's competition policy.137
IV. THE SUNSHINE ACT COUNT
The Government in the Sunshine Act is grounded on the principle that "the public is entitled to the fullest practicable information regarding the decisionmaking processes of the Federal Government."138 Accordingly, the Act requires that all meetings of multi-member agencies be open to public observation.139 Meetings may be closed, however, where they would likely involve the discussion of information protected from disclosure under one or more of ten narrowly defined exemptions.140
The sole question presented in this count is whether the consultative process exchanges are "meetings" within the meaning of the Act. On cross-motions for summary judgment, the district court held that they are. We conclude that there are no genuine issues of material fact, and we affirm. The public may therefore be excluded from these discussions only in accordance with the Act's stringent closure provisions.
The Sunshine Act defines a "meeting" as "the deliberations of at least the number of individual agency members required to take action on behalf of the agency where such deliberations determine or result in the joint conduct or disposition of official agency business."141 Under the Act, the Commission bears the burden of demonstrating that this definition does not encompass the CP discussions.142 It has advanced three arguments, which we consider in turn.
A. The Authorization Requirement
To be a meeting covered by the Sunshine Act, a gathering must include "at least the number of individual agency members required to take action on behalf of the agency."143 This language requires the presence of either a quorum of the full agency or a quorum of a "subdivision ... authorized to act on behalf of the agency."144 Although it is undisputed that a quorum of the Telecommunications Committee attends the CP exchanges, the Commission argues that it has not "authorized" the Committee to "act" on its behalf at the discussions. Because such an authorization could only be accomplished through an express delegation of power pursuant to 47 U.S.C. § 155(d)(1) (1976),145 the Commission contends, the threshold requirement of an authorized quorum has not been met.
We disagree. The applicability of the Sunshine Act manifestly cannot turn on whether an agency has in fact followed proper procedures for delegating authority to a subdivision, for the requirements of the Act could otherwise be evaded at will. The Commission concedes in the instant case that (1) Committee members attend CP exchanges in their "official roles";146 (2) their goal is to build a "consensus" that will "lead ultimately to operating agreements for ITT's competitors";147 and (3) they convey the information and views "exchanged" at the meetings to the full Commission for its consideration.148 Indeed, the Commission insists in its rulemaking denial that the Committee's participation in the meetings is necessary for the Commission to carry out its statutory duty to regulate international communications.149 Whatever the actual scope of the Committee's endeavors, there can therefore be no question that they are undertaken "on behalf of" the Commission.
B. "Conduct or Disposition of Official Agency Business"
A more difficult question is whether the Committee's efforts are "deliberations [that] determine or result in the joint conduct or disposition of official agency business."150 The statutory language is ambiguous. "Deliberations" might be read narrowly to encompass solely the internal process of weighing and examining proposals that precedes a formal decision by the agency. On the other hand, "conduct ... of official agency business" suggests a much broader range of activity, including, inter alia, hearings and meetings with outsiders.
The Commission advances three arguments, based on the statutory language and the legislative history, in support of the narrow interpretation.
1. "Official Agency Business"
The Commission argues that the Committee does not transact "official agency business" at the meetings; members participate solely to "exchange information and views," and not to vote, "negotiate," or otherwise engage in a "`rump' FCC meeting."151 The Reports of the House and Senate Committees on Government Operations, however, clearly demonstrate that "official agency business" encompasses far more than simply "agency actions" of the sort reviewable under the APA.152 The Senate Report, for example, states that "[i]n addition to business meetings of the agency," the definition of a covered meeting "includes hearings and meetings with the public."153 Similarly, both Reports indicate that subdivisions are covered by the Act where they are "authorized to submit recommendations, ... or to conduct hearings on behalf of the agency."154 So long as hearings and meetings with outsiders result in the actual conduct of official business, agencies cannot avoid the openness requirements where they are otherwise subject to the Act.
The Commission has advanced no reason to distinguish the discussions at issue from "hearings" or "meetings with the public." There can be no question, moreover, that the closed discussions involve agency business of the first import. These encounters play an integral role in the Commission's policymaking processes in at least two ways. First, the Commission has emphasized that the meetings are an important means for gathering information and opinions from foreign administrations, and that this material is essential in its deliberations regarding the future structure of international telecommunications.155 The Act extends to subdivisions' activities that result in the submission of "recommendations," and we agree with the district court that the Commission has failed to rebut the common-sense presumption that the Committee's activities are, at least in part, evaluative and recommendatory in nature.156 Second, the success of the Commission's established competition policy depends on its achieving a "consensus" and "favorable climate" with foreign administrations,157 and the agency has chosen the CP as the vehicle to assist Graphnet and Telenet in obtaining interconnection agreements. The broad sweep of the Sunshine Act does not support a distinction between an agency's predecisional activities and its postdecisional efforts to implement, interpret, and promote its policies. Both are important components of "official agency business."
2. Meetings "of" the Agency
The Commission argues, however, that the CP discussions are not meetings of the Committee, but simply meetings attended by the Committee. Put another way, the discussions do not involve the "joint" conduct of business among Committee members, but rather exchanges between the Committee and outside parties.
Again, this argument fails to overcome the presumption that agency hearings and meetings with outsiders be open to public observation. An agency cannot avoid this requirement through the facile expedient of having an outside party "hold" the discussion, for the Sunshine Act's policy that hearings and meetings with the public be open could otherwise be ignored with impunity.158
Moreover, the intended meaning of the phrase "joint conduct" offers the Commission little comfort. The House Report emphasizes that the phrase "does not exclude the situation where a subdivision authorized to act on behalf of the agency meets with other individuals concerning the conduct or disposition of agency business."159 Rather, the phrase was intended to exempt solely those situations "where the requisite number of members is physically present in one place but not conducting agency business as a body."160 Both the House and Senate Reports cite as an example a gathering where one member gives a speech concerning agency business while other members are in the audience.161 The instant situation is readily distinguishable. The full Committee meets with its foreign counterparts, and the record shows that all members are active participants in the give-and-take.162
3. "Informal Background Discussions"
The Commission relies heavily on a statement in the Senate Report that "[i]t is not the intent of the bill to prevent any two agency members, regardles [sic] of agency size, from engaging in informal background discussions which clarify issues and expose varying views."163 The Commission contends that the CP meetings are precisely the sort of discussions that Congress intended to exclude by this language. We conclude that this passage from the Senate Report, read in context, does not support the Commission's position.
The definition of a "meeting" was recurrently revised during the course of the legislative process.164 Many members of Congress, both supporters and opponents of the Act, were particularly concerned that the evolving definition might mechanically be extended to informal discussions among members that did not truly constitute the "conduct" of agency business. Examples cited included passing references to agency business at social gatherings,165 casual background conversations in offices and corridors,166 banter on the golf course,167 and breakfast or luncheon discussions among members about the day's business.168
Although many legislators felt that the phrase "conduct ... of official agency business" by definition excludes such encounters,169 the language cited by the Commission was inserted into the Senate Report to ensure that discussions of this sort were not construed as actual meetings. The Report emphasizes that the line between these kinds of informal encounters and those amounting to the actual conduct or disposition of agency business is fine, and it reiterates that the Act's presumption of openness requires that all doubts be resolved against closure.170
The thrust of the language in the Senate Report therefore concerns "informal background discussions" among agency members rather than between members and outsiders.171 Although we believe that the Sunshine Act does not per se forbid all informal off-the-record discussions between a quorum of an agency and outside parties, we conclude that an agency's burden of persuasion must be especially great in such situations. Congress intended that "hearings" and "meetings with the public" be open; many such gatherings could easily be characterized as "informal background discussions which clarify issues and expose varying views." If we did not apply the narrowest of interpretations to this language, it would readily swallow up the requirement of open "hearings" and "meetings with the public."
In the instant case, the Commission has failed to overcome the presumption in favor of openness. The CP discussions are not "chance meetings," "social gatherings," or "informal discussions" among members,"172 but prearranged conferences held to effectuate public business of the greatest import. They focus on concrete issues and are conducted to build a "consensus" that will have far-reaching effects on the structure of the communications industry. They are, in short, an integral part of the Commission's policymaking processes, and as such they constitute the "conduct ... of official agency business."
C. Policy Arguments
The Commission invokes a number of "adverse practical consequences" that would allegedly result from extending the Sunshine Act to the consultative process.173 These difficulties, the Commission argues, demonstrate that — "at least in the absence of a clear statement by Congress" — the Act should not be interpreted to cover meetings between an agency and its foreign counterparts.174
The absence of a clear statement by Congress, however, cuts in the other direction.175 The Sunshine Act's presumption in favor of open meetings is sweeping and, with the exception of enumerated exemptions, unqualified. The Commission points to nothing in the history or structure of the Act to indicate that Congress intended sub silentio to permit the closure of agency meetings simply because foreign representatives are present.
Moreover, the Act permits agencies to close meetings that likely would involve the discussion of information exempted from disclosure under 5 U.S.C. § 552b(c) (1976); the district court specifically invited the Commission to take advantage of this provision. For example, section 552b(c)(9) permits an agency to close meetings involving "information the premature disclosure of which would ... be likely to frustrate implementation of a proposed agency action." Similarly, section 552b(c)(1) permits closure where discussions would involve national defense or foreign policy information that is exempt "under criteria established by an Executive order."176 Thus, Congress fully recognized that certain meetings should not be open to public scrutiny. As we have emphasized, however, "[t]he means Congress chose to accomplish this objective, ... was to permit an agency to close a particular meeting on an individual basis because of the adverse impact public proceedings would be likely to have upon the rights of individuals and the ability of the government to function properly."177 Rather than acting upon an "individual and particularized basis,"178 the Commission has sought to exempt an entire category of its business from the requirements of the Sunshine Act. We therefore reject the Commission's restrictive interpretation of "meetings" covered by the Act.179
V. THE RULEMAKING DENIAL
We turn finally to the Commission's order denying ITT's petition for rulemaking. Our scope of review is defined by 5 U.S.C. § 706(2) (1976), which requires that we "hold unlawful and set aside agency action, findings, and conclusions found to be," inter alia, "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."180
We have noted that the arbitrary and capricious standard is not "a fixed template to be imposed mechanically on every case,"181 but instead requires calibration in accordance with the nature and context of the challenged action. Where an agency promulgates rules, our standard of review is "diffident and deferential,"182 but nevertheless requires a "searching and careful" examination of the administrative record to ensure that the agency has fairly considered the issues and arrived at a rational result.183 Where, as here, an agency chooses not to engage in rulemaking, our level of scrutiny is even more deferential: "It is only in the rarest and most compelling of circumstances that this court has acted to overturn an agency judgment not to institute rulemaking."184 This added measure of deference, however, is appropriate only where the rejected proposal is addressed to matters within the agency's broad policy discretion.185 Where a rulemaking petition challenges an agency's compliance with substantive and procedural norms, on the other hand, our standard of review must perforce be "exacting" to ensure that the agency has "scrupulously" followed the law.186
ITT's rulemaking petition involves both issues of discretion and questions of compliance with statutory and procedural commands. The Commission has considerable discretion, beyond the statutory minima, in fashioning rules for public participation in its processes.187 Some of ITT's proposals go well beyond minimum statutory requirements, and the Commission might reasonably conclude that they are cumbersome and counterproductive.188 On the other hand, many of the issues presented in the rulemaking petition call into question the Commission's compliance with the Communications Act, the APA, and the Sunshine Act. Our review of its disposition of these issues must be "thorough, probing, [and] in-depth";189 the Commission's explanation and the evidence it marshalls "must be such as to enable [us] to determine with some measure of confidence whether or not the [actions are] arbitrary [or] capricious."190
Applying these standards, we reverse the Commission's rulemaking denial in part, and remand the remaining issues for further consideration in accordance with our discussion below.
A. The Sunshine Act
For the reasons set forth in Part IV, the CP discussions are "meetings" within the meaning of the Sunshine Act, and are therefore governed by the Act's stringent closure provisions. In its rulemaking denial, however, the Commission concluded that these exchanges fall outside of the Sunshine Act's ambit.191 This determination is not in accordance with law, and we therefore reverse this part of the Commission's order.
B. The Commission's Authority
The Commission's assessment of the scope of its authority deserves deference.192 Before we can sanction the Commission's course of conduct, however, we must ascertain the nature of its actions, its reasons for the actions, and whether those actions comport with the Communications Act and the APA.193 The Commission's explanations and the "record" it has assembled are patently inadequate for such a determination.194 We are asked, in essence, to approve of actions about which we know almost nothing. The record consists simply of the Commission's assertions that it has not negotiated, and of numerous statements by agency members that would appear to undercut these assertions. Self-serving representations are no substitute for an adequate record that would enable us to determine with confidence the actual scope of the Commission's endeavors. By refusing to develop any such record of its contacts with foreign administrations, the Commission has frustrated meaningful judicial review of its rulemaking denial.195
The Commission argues, however, that no record is required because (1) no one is prejudiced by the informal, off-the-record meetings, and (2) no reviewable "agency action" occurs at the meetings. This argument must be rejected. ITT has pointed to a number of factors that raise serious questions about the Commission's claim that no "agency action" occurs in connection with the consultative process.196 This court certainly has authority to determine whether activities engaged in by the Commission are subject to judicial review; the circular claim that these activities are unreviewable makes such a determination impossible.
In addition to the paucity of the record, several additional "danger signals" suggest that the Commission may not have engaged in "reasoned decision-making" in its rulemaking denial.197 First, ITT pointed to a number of statements by agency officials that would appear to contradict the Commission's characterization of the CP meetings as mere "information exchanges."198 In its order, however, the Commission failed completely to acknowledge these statements or to explain the apparent contradictions.199 Second, the Commission dismissed ITT's ex parte and prejudgment claims as "theoretical" and "speculative, for in the absence of a pending proceeding, be it formal or informal, [such] questions ... simply do not exist."200 Reference to the Commission's FOIA materials, however, suggests that a number of pending docket proceedings have in fact been discussed at the CP meetings.201 Finally, there is evidence suggesting that the rulemaking denial was crafted in part to enhance the Commission's litigation posture in the district court action.202
On the basis of the Commission's statement and the record before us, we therefore cannot sustain the Commission's characterization of its actions, its conclusion that these actions are authorized, or its rejection of all APA safeguards. We must therefore remand the order to the Commission.
Our normal course would simply be to instruct the Commission to consider the issues further and develop an adequate record for judicial review.203 In the instant case, however, we also have a district court action that is simultaneously being remanded for de novo proceedings on the ultra vires issue.204 To the extent that there is tension in such a "double remand," it is largely of the Commission's own making. As discussed in Part II-A, the issues raised by the ultra vires count are distinct from those presented in the rulemaking denial.205 District court scrutiny, moreover, is appropriate in large measure because the consultative process has taken place outside of normal administrative channels, thereby necessitating de novo factfinding.206 At the same time, the necessity for district court intervention does not lessen the degree of scrutiny we apply to the Commission's rule-making denial,207 and in no way excuses the Commission's failure to generate a contemporaneous administrative record of the consultative process.208
Nevertheless, we are concerned that the practical effect of our decision is fraught with the potential for duplication, conflicting resolutions, and further delay. The Commission may avoid these difficulties through the simple expedient of staying further action on ITT's rulemaking petition pending the district court's resolution of the ultra vires issue. If the district court determines that the Commission may not engage in the consultative process, the question of rulemaking will become moot. If the Commission's actions are upheld in part or in whole, the Commission can then consider afresh the extent to which rulemaking may be appropriate, informed by the district court's resolution and guided by the considerations we have set forth today.
C. Delegation of Authority to the Telecommunications Committee
The Commission may delegate its authority to subdivisions or individual members, but such delegation must be accomplished "by published rule or by order."209 The Commission has delegated power to the Committee to act upon certain common carrier applications and requests.210 Its published rule, however, provides no explicit authorization to the Committee to engage in the consultative process.
If the Commission argued that the CP exchanges were important to the Committee's discharge of its delegated responsibilities, we might well conclude that no explicit authorization to participate was necessary. Interaction with the public is the "bread-and-butter" of government administration;211 dialogues with its foreign counterparts might reasonably be characterized as necessary and proper to the efficient transaction of the Committee's business.212 In the instant case, however, the Commission adamantly maintains that the Committee's functions are strictly limited to its delegated responsibilities, that the CP meetings do not relate to these responsibilities, and that the Committee itself has no authority to act on the Commission's behalf at the meetings.213 The Commission characterizes the Committee members' attendance as pursuant to their personal capacities: "The authority to meet with foreign entities is not something for which delegation is required since any commissioner, given the nature of his regulatory responsibilities, has the right — indeed, the responsibility — to meet with the public to educate himself regarding the issues."214
This argument easily fails. The Commission concedes elsewhere that the commissioners attend the meetings in their official capacities and qua the Telecommunications Committee, and the record amply shows that the Committee acts on the Commission's behalf in seeking to effectuate official agency business.215 Taking the Commission at its word that the Committee's delegated authority does not encompass such endeavors, we direct that, so long as the Committee continues to play this role in the consultative process, it do so only pursuant to a proper and precise delegation of authority from the Commission.
To summarize our decision:
First, with respect to the ultra vires count, we conclude that (a) the district court has subject matter jurisdiction, (b) ITT has standing, and (c) the controversy is ripe for adjudication. We therefore reverse the judgment of the district court dismissing that count and remand for further proceedings.
Second, we affirm the district court's judgment ordering disclosure under FOIA of items 1 and 7. We reverse with respect to item 2. As to the other documents contested in this litigation, we reverse and remand to the district court for further consideration and findings.
Third, we affirm the district court's judgment that the CP discussions are "meetings" within the meaning of the Sunshine Act. The public may therefore be excluded from these discussions only in accordance with the Act's stringent closure provisions.
Finally, we (a) reverse that part of the Commission's rulemaking denial concluding that the Sunshine Act does not encompass the meetings at issue, and (b) remand the remainder of the order to the Commission for further action in accordance with our opinion.