02-11940. National Endowment for the Arts; Determination of the Chairman of the National Endowment for the Arts as to Certain Advisory Committees: Public Disclosure of Information and Activities

The National Endowment for the Arts utilizes advice and recommendations of advisory committees in carrying out many of its functions and activities.

The Federal Advisory Committee Act, as amended (Public Law 92-463), governs the formation, use, conduct, management, and accessibility to the public of committees formed to advise and assist the Federal Government. Section 10 of the act specifies that department and agency heads shall make adequate provisions for participation by the public in the activities of advisory committees, except to the extent a determination is made in writing by the department or agency head that a portion of an advisory committee meeting may be closed to the public in accordance with subsection (c) of section 552b of title 5, United States Code.

It is the policy of the National Endowment for the Arts to make the fullest possible disclosure of records to the public, limited only by obligations of confidentiality and administrative necessity. Consistent with this policy, meetings of the following Endowment advisory committees will be open to the public except for portions dealing with the review, discussion, evaluation, and/or ranking of grant applications: Combined Arts, Fellowships, Leadership Initiatives, Partnership, Special Projects, and the Federal Advisory Committee on International Exhibitions.

The portions of the meetings involving the review, discussion, evaluation and ranking of grant applications may be closed to the public for the following reasons:

Information and data are furnished to the Endowment by grant applicants with the expectation that such information will be treated on a confidential basis and not necessarily disclosed to the public until such time as a final funding decision has been rendered. This information may include such matters as details relating to the type of design or work to be performed, adequacy of the applicant's facilities, competence of the applicant's staff, proposed budget, personal biographical data, and other material which would not otherwise be disclosed. If the process were not to continue on a confidential basis, grant applicants would not supply sufficiently detailed information so essential for complete and effective review of their proposals.

Further, public discussion of the merits of proposals not recommended for funding could subject unsuccessful grant applicants to negative speculation about the quality of the applicants' work. Additionally, premature public disclosure might adversely influence or prejudice the decisions of other funding sources in connection with their review of similar proposals.

Endowment consultant-experts are chosen from among persons recognized for their expertise in the arts. These experts review and evaluate applications for financial assistance submitted to the Endowment by their peers and colleagues in the respective cultural fields. As a result, public participation in panel meetings involving application review, during which negative criticisms of an applicant's work are expressed, undoubtedly would affect a consultant-expert's willingness to express his or her full and frank opinion regarding the merits of the proposed project or activity. Accordingly, the Endowment's capacity effectively to carry out its statutory mandate and maintain the highest possible standards of quality with respect to funding recommendations would be seriously impaired by its inability to conduct the application review process in a confidential atmosphere conducive to the candid and honest exchange of ideas. Thus, such public participation would be likely to significantly frustrate the implementation of proposed agency actions, i.e., proposed funding decisions.

Consequently, in the interest of meeting our obligations of confidentiality in reference to matters submitted as part of grant applications, and in order to encourage and ensure, for the benefit of the Government's review and evaluation process, candid and uninhibited expression of views concerning the merits of grant applications and contract proposals:

It is hereby determined in accordance with the provisions of section 10(d) of the Act that the disclosure of information regarding the review, discussion, and evaluation of grant applications and contract proposals, as outlined herein is likely to disclose:

(1) Trade secrets and commercial or financial information obtained from a person and privileged or confidential;

(2) Information of a personal nature the disclosure of which would constitute a clearly unwarranted invasion of personal privacy; and

(3) Information the premature disclosure of which would be likely to significantly frustrate implementation of proposed agency action.

Therefore, in light of the above, I have determined that the above referenced meetings or portions thereof, devoted to review, discussion, evaluation, and/or ranking of grant applications, and contract proposals may be closed to the public in accordance with subsection (c)(4)(6), and 9(B) of section 552b of title 5, United States Code.

The staff of each committee shall prepare a summary of any meeting or portion not open to the public within three (3) business days following the conclusion of the meeting of the National Council on the Arts considering applications recommended by such committees. The summaries shall be consistent with the considerations that justified the closing of the meetings.

All other portions of the meetings of these advisory committees shall be open to the public unless the Chairperson of the National Endowment for the Arts or a designee determines otherwise in accordance with section 10(d) of the Act.

The Panel Coordinator shall be responsible for publication in the Federal Register or, as appropriate, in local media, of a notice of all advisory committee meetings. Such notice shall be published in advance of the meetings and contain:

(1) Name of the committee and its purposes:

(2) Date and time of the meeting, and, if the meeting is open to the public, its location and agenda; and

(3) A statement that the meeting is open to the public, or, if the meeting or any portion thereof is not to be open to the public, a statement to that effect.

The Panel Coordinator is designated as the person from whom rosters of lists of committee members may be obtained and from whom minutes of open meetings or open portions thereof may be requested.

Guidelines

Any interested person may attend meetings of advisory committees that are open to the public.

Members of the public attending a meeting will be permitted to participate in the committee's discussion at the discretion of the chairperson of the committee, if the chairperson is a full-time Federal employee; if the chairperson is not a full-time Federal employee then public participation will be permitted at the chairperson's discretion with the approval of the full-time Federal employee in attendance at the meeting in compliance with the order.

Dated: May 2, 2002.

Eileen B. Mason,

Acting Chairman, National Endowment for the Arts.