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Washington Legal Found. v. U.S. Sentencing Comm'n

ELR Citation: 25 ELR 21189
Nos. No. 93-5216, 17 F.3d 1446/(D.C. Cir., 02/25/1994)

The court holds that the U.S. Sentencing Commission's Federal Advisory Working Group on Environmental Sanctions (Advisory Group) is not subject to the Federal Advisory Committee Act (FACA) and, therefore, need not open its meetings and make its documents available to the public. Under FACA, an advisory committee is subject to the Act if it is either "established" or "utilized" by one or more agencies. The court first holds that the Sentencing Reform Act exempts the Sentencing Commission from the Administrative Procedure Act (APA), rendering it not an "agency" under the APA or FACA, since FACA defines "agency" with reference to the APA. The court holds, therefore, that the Advisory Group is exempt from FACA's requirements for agencies because the Advisory Group was "established" by the Commission and not by the U.S. Department of Justice (DOJ), which is an "agency." The court next holds that the Sentencing Commission is not "utilized" by an agency. The word "utilized" in FACA requires actual management or control of the advisory committee, and there is no evidence that the Advisory Group's relationship to DOJ fits this description. Despite DOJ's interest in the Advisory Group's deliberations and the fact that DOJ will likely exert influence on those deliberations, influence is not control. Finally, the court remands appellant's common-law claims for access to the Advisory Group's documents for further findings on whether any of the documents appellant requested are subject to the common-law right of access. The lower court did not evaluate sufficiently appellant's request for the Advisory Group's documents under the common-law right of access to public records.

Counsel for Appellant
Daniel A. Rezneck, Edward H. Sisson
Arnold & Porter
1200 New Hampshire Ave. NW, Washington DC 20036
(202) 872-6700

Counsel for Appellees
Malcolm L. Stewart
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000