[117779] in Cypherpunks
Re: PECSENC Report Up
daemon@ATHENA.MIT.EDU (Lee Tien)
Fri Sep 10 12:38:09 1999
Message-Id: <v03007803b3fedb84c5d4@[192.168.1.105]>
In-Reply-To: <19990909082110.B10339@ideath.parrhesia.com>
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Date: Fri, 10 Sep 1999 09:20:52 -0700
To: Greg Broiles <gbroiles@netbox.com>, Bill Stewart <bill.stewart@pobox.com>
From: Lee Tien <tien@well.com>
Cc: cypherpunks@cyberpass.net
Reply-To: Lee Tien <tien@well.com>
The ACLU book, "Litigation under the Federal Open Government Laws," devotes
a chapter to FACA. With a sample FACA complaint for access in the
appendix. (Don't you have that book, Greg?) I don't have the latest
edition before me, but the 19th ed. cites Public Citizen v. DOJ, 491 US 440
(1989) as the only Supreme Court case to address FACA at all. More recent
is Ass'n of Am. Physicians & Surgeons v. Hillary R. Clinton, 997 F.2d 898
(D.C.Cir. 1993).
Based on my general knowledge and a quick skim, nothing in FACA itself
prohibits an advisory committee from publishing its work-product.
However, an advisory committee may withhold information (against a FACA
request for records) using FOIA exemptions.
Normally an agency would claim that draft recommendations were exempt under
(b)(5), privileged as predecisional/deliberative. (Since it's been
published, I'd say that's been waived!)
Probably someone told Prof. Denning that a rule/norm of PECSENC, or of PEC
in general, was to embargo recommendations until the end of the
recommendatory road. And also told her that FACA entitled advisory
committees to withhold from disclosure such recommendations. They got
smushed together in her note.
Just guessing,
Lee
At 8:21 AM -0700 9/9/99, Greg Broiles wrote:
>On Wed, Sep 08, 1999 at 06:18:36PM -0700, Bill Stewart wrote:
>> Dorothy Denning's site now says
>> "Liberalization 2000, the recommendations of the
>> President's Export Council Subcommittee on Encryption (PECSENC),
>> is temporarily unavailable.
>> According to FACA, it was not to have been distributed
>> and discussed with the Press until after it was approved by the
>>full PEC
>> and sent to the President.
>
>I believe that "FACA" refers to the "Federal Advisory Committee Act" (5
>USC Appendix 2, Sections 1-15), legislation which I've heard about but
>not read. It strikes me as plausible that members of the subcommittee
>aren't supposed to release the results of their investigations and
>deliberations until they've been vetted by the full committee. Perhaps
>other list members are better read on this topic.
>
>I have been able to find this online summary of the FACA -
><http://www.fws.gov/laws/federal/summaries/faca.html> but don't know
>enough about the area to comment meaningfully on the accuracy or
>completeness of the summary.
>
>--
>Greg Broiles
>gbroiles@netbox.com
