United States District Judge, John Bates, has ruled that a law enforcement panel violated the Federal Advisory Committee Act (FACA) by only placing current and former law enforcement personnel on the commission and by holding closed meetings without advance public notice. The panel created under the direction of President Trump must cease all work until it comes into compliance with the transparency statute.
According to FACA, committees must be “fairly balanced” in their formation. The judge says that the commission consisting exclusively of current and former law enforcement individuals cannot meet that requirement.
In a report from Politico:
Bates noted that one appeals court, the San Francisco-based 9th Circuit, has held that the “fair balance” requirement in FACA to too vague for courts to enforce. But he said the weight of legal precedent comes down in favor of the provision being susceptible to enforcement by judges, especially in egregious cases.
Bates rejected the Justice Department’s arguments that the panel was exempt from the transparency statute under an exemption created in 1995 for committees dealing solely with issues of joint responsibility between the federal government and state, local or tribal governments. He said that defining that exemption as broadly as the Justice Department suggested would have “no limiting principle” and would essentially gut the law.
Many of the panel’s meetings have been held publicly by teleconference since the coronavirus pandemic began to spread earlier this year. The Justice Department’s website lists 14 hearing sessions and provides a transcript and audio recording for most of them.
However, the judge’s ruling says the department conceded that the meetings would be considered closed if the transparency statute applied. The sessions were also not announced in advance in the Federal Register, as the law requires, Bates said.
The commission’s last report was supposed to be sent to Attorney General William Barr later in October, however all work must be halted until the membership on the panel is updated to comply with FACA’s requirements.