[117785] in Cypherpunks
Re: PECSENC Report Up
daemon@ATHENA.MIT.EDU (Declan McCullagh)
Fri Sep 10 14:08:48 1999
Date: Fri, 10 Sep 1999 13:49:38 -0400
To: Lee Tien <tien@well.com>, Greg Broiles <gbroiles@netbox.com>,
Bill Stewart <bill.stewart@pobox.com>
From: Declan McCullagh <declan@well.com>
Cc: cypherpunks@cyberpass.net
In-Reply-To: <v03007803b3fedb84c5d4@[192.168.1.105]>
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Message-Id: <19990910174934.NMNX24367@alaptop.hotwired.com>
Reply-To: Declan McCullagh <declan@well.com>
I haven't followed this exchange closely -- just got back from Australia --
but Time-Warner's counsel went a few rounds with Andrew Pincus, attorney
for the Commerce Department, on my behalf over the subcommittee's closed
meetings and records and the relevant law that applies. I still have the
exchange somewhere if it's needed. --Declan
At 09:20 9/10/1999 -0700, Lee Tien wrote:
>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
>
