Open Government

Federal Advisory Committee Act


The Federal Advisory Committee Act is a critical tool for opening the process by which government agencies obtain advice from advisory committees and private individuals.

Enacted by Congress in 1972, the Federal Advisory Committee Act (FACA) is the principal statute governing the operation of committees that advise the federal government. The FACA requires advisory committees to conduct their meetings in the open, to proactively publish their records, and to comply with certain recordkeeping and reporting requirements. While the Freedom of Information Act mandates the disclosure of federal agency records, the FACA ensures the transparency of the process by which those federal agencies and other federal officers receive advice from the public.

The Scope of the FACA

The Federal Advisory Committee Act applies to “any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof” established by Congress, the President, or a federal agency (or used by the President or a federal agency) “in the interest of obtaining advice or recommendations[.]” Loosely speaking: if the federal government creates or exercises direct control over an advisory body, that body is subject to the FACA. However, committees “composed wholly of fulltime, or permanent part-time, officers or employees of the Federal Government” are excluded from the statute.

The FACA imposes a variety of accountability measures on advisory committees and the agencies they advise. A detailed charter must be filed when a committee is formed, a copy of which is kept in a public database maintained by the General Services Administration. The committee must operate under the supervision of a designated federal officer, who in turn reports to a committee management officer tasked with overseeing all of an agency’s advisory committees. The agency to which a committee reports must also fulfill certain reporting requirements and maintain financial records concerning a committee’s operations.

Most importantly, an advisory committee’s proceedings and records must (with narrow exceptions) be open to the public. A committee is required to announce its meetings in the Federal Register, and members of the public must be allowed to attend those meetings and/or provide input on the committee’s work. The committee must also keep minutes of its proceedings and proactively make those minutes—along with the rest of the committee’s records—available for public review. Courts have held that the disclosure of committee records must be contemporaneous with the meetings they pertain to so that members of the public can follow the committee’s work.

EPIC’s Use of the FACA

EPIC has on numerous occasions made use of the Federal Advisory Committee Act to ensure that committees whose work touches on privacy and artificial intelligence operate transparently and accountably.

In 2017, EPIC brought suit against the Presidential Advisory Committee on Election Integrity (PACEI) to halt its unlawful attempt to gather the personal data of every voter in the country. Among other claims, EPIC alleged that the PACEI had unlawfully failed to publish a privacy impact assessment for its collection of personal data as required by the FACA and the E-Government Act of 2002. Following EPIC’s suit, the Commission temporarily suspended its data collection, discontinued the use of an unsafe computer server, deleted voter information that was illegally obtained, and ultimately disbanded.

In 2018, EPIC filed a FACA lawsuit against the Federal Aviation Administration’s Drone Advisory Committee (DAC) to obtain records and ensure open committee meetings. The DAC consistently ignored the privacy risks posed by the deployment of drones (even after identifying privacy as a top public concern) and concealed much of its work in subcommittees that were closed to the public. As a result of EPIC’s lawsuit, the Committee was forced to disclose hundreds of pages of records under the FACA.

In 2019, EPIC filed suit against the National Security Commission on Artificial Intelligence to force the secretive committee to comply with its FACA and FOIA obligations. The Commission was charged by Congress with developing recommendations on the use of AI in national security and defense contexts. But after the Commission conducted much of its work in secret and without public input, EPIC sued. EPIC twice prevailed in the case, securing court rulings that the Commission was subject to both the FACA and the FOIA. As a result, the Commission was forced to hold public meetings and disclose thousands of pages of records about its work to EPIC.

Recent Documents on Federal Advisory Committee Act

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