Amtrak’s Board of Directors: Transparency Assessment

This assessment examines the general lack of transparency with which the Amtrak Board of Directors (“the Board”) operates.

Meetings of the Amtrak Board are not open to the public or the media.

In the course of normal business, the Board does not publish its meeting agendas, meeting minutes, transcripts, recordings or any other information related to its work or its decisions.

With this assessment we review this issue in some detail, compare the transparency of the Amtrak Board of Directors with similar boards of directors, and discuss steps that can be taken to increase the board’s transparency.


Background

The National Railroad Passenger Corporation (Amtrak) was created by the Rail Passenger Service Act of 1970. The entity was incorporated in the District of Columbia in 1971.

The Board, as described in 49 U.S.C. § 24302, is composed of ten directors. They are:

  • (A) The Secretary of Transportation,
  • (B) The President of Amtrak, who serves as a nonvoting member of the Board, and
  • (C) “8 individuals appointed by the President of the United States, by and with the advice and consent of the Senate, with general business and financial experience, experience or qualifications in transportation, freight and passenger rail transportation, travel, hospitality, cruise line, or passenger air transportation businesses, or representatives of employees or users of passenger rail transportation or a State government.”

The current members of the Amtrak Board are listed on this webpage, along with links to their individual biographies. —

Screenshot of the Amtrak Board of Directors webpage | October 16, 2020
Source: https://www.amtrak.com/board-of-directors

Note that this page does not include any information regarding meetings of the Board. There are also no indications of future meetings, copies of past meeting agendas or minutes, or copies of material presented to or by the Board.

In fact, we are unable to find any published information online that advises the public of any opportunities to understand any aspect of Board discussions of decisions.

As a footnote to this section we should point out that H.R. 2, the Moving Forward Act, which was passed by the U.S. House of Representative on July 1, 2020, would if enacted realign the criteria for appointments to the Amtrak Board.

The proposed law would would replace subparagraph (C) of 49 U.S.C. § 24302 with this new text —

  • “(C) 8 individuals appointed by the President of the United States, by and with the advice and consent of the Senate, with a record of support for national passenger rail service, general business and financial experience, and transportation qualifications or expertise. Of the individuals appointed,
  • (i) 1 shall be a Mayor or Governor of a location served by a regularly scheduled Amtrak service on the Northeast Corridor;
  • (ii) 1 shall be a Mayor or Governor of a location served by a regularly scheduled Amtrak service that is not on the Northeast Corridor;
  • (iii) 1 shall be a labor representative of Amtrak employees; and
  • (iv) 2 shall be individuals with a history of regular Amtrak ridership and an understanding of the concerns of rail passengers.”

When or even if this Act will become law is not at all clear at this time.


Amtrak compared to similar entities

To put the Amtrak Board’s lack of transparency into perspective we created this chart —

Amtrak compared to Public-benefit Corporations in the U.S. (PDF)
(click on the image for a full page view of the PDF)

The chart compares the Amtrak Board with six similar entities, all of whom effectively exist, like Amtrak, to serve the public interest.

We also reviewed the transparency of the boards that oversee each of the thirty (30) odd publicly-funded providers of passenger rail service in the United States.

We found that all 30 of these organization has both open and transparent board of directors meetings.a

Here’s a sampling of the organizations that we reviewed, with a link to the respective organization’s board of directors webpage.

Alaska Railroad
A freight and passenger railroad owned by the State of Alaska

The Capitol Corridor Joint Powers Authority
Provides administration and management of the Capitol Corridor in northern California

Northern New England Passenger Rail Authority
Provides administration and management of the Downeaster service between Maine and Boston

Peninsula Corridor Joint Powers Board
The operator of the Caltrain commuter rail service along the San Francisco Peninsula

Regional Transit Authority
The regional transit agency for the Denver Metro area

The Metropolitan Transportation Authority
The regional transit authority for the the New York City Metro region

Virginia Passenger Rail Authority
The newly created VPRA has the administrative and fiduciary responsibility to promote, sustain, and expand the availability of passenger rail service in the Commonwealth of Virginia.

a The Connecticut Department of Transportation (operator of the CTrail Hartford Line) and the Maryland Transit Administration (operator of the MARC Train Service) do not have a board of directors.


Why are Amtrak’s board meetings not open to the public?

The short answer

Meetings of the Amtrak Board of Directors are not subject to the Government in the Sunshine Act.

If Amtrak was subject to this Act every meeting of its board of directors would be be open to public observation, each meeting would have been announced in advance with a published agenda, and the minutes and records of the meetings would have been made available to the public.

The long answer

In the late 1960s and early 1970s, Congress passed a series of transparency laws designed to bring greater accountability to the federal government.1

The first such law, the Freedom of Information Act (FOIA), requires government agencies to provide access to agency documents upon public request so long as one of a series of exceptions (protecting documents related to national defense, trade secrets, and internal deliberative matters, among other things) is not met.2

Another law, the Government in the Sunshine Act (Open Meetings Act), requires that, with notable exceptions, meetings of federal government agencies and regulatory bodies be open to the public, along with their decisions and records.3

It is important to note that the FOIA and the Open Meetings Act normally only apply to federal agencies.

The term “agency” under the FOIA means, with certain non-relevant exceptions, “each authority of the Government of the United States.”4

The term “agency” under the Sunshine Act has the same meaning as it has under the FOIA so long as that “agency” is headed by a “collegial body” having 2 or more members, the majority of whom are appointed by the President with the advice and consent of the Senate.5

A special statute, however, provides that Amtrak, “is not a department, agency, or instrumentality of the United States Government.”6

Interestingly, Amtrak has been held to be a governmental agency under the Constitution for purposes of determining whether it could be a participant in adopting metrics and standards for private rail operators to follow when they provide passenger rail services to Amtrak.7

It has also been held to be a governmental agency for purposes of the First Amendment.8

However, where no Constitutional rights are at issue, Congress is free to exclude Amtrak from the strictures of statutes which impose obligations on other public entities.9

There is no Constitutional right to have agencies take action as required by the Open Meeting Act, so Congress is perfectly free to provide that Amtrak is not subject to that Act by defining it not to be a federal agency for non-Constitutional purposes.

By itself, the special statue noted above would exclude Amtrak from both the FOIA and the Open Meetings Act.

However, in 1972 Congress amended the Rail Passenger Service Act of 1970 and by adding a statute that required Amtrak to be subject to FOIA.10

And in 1997 Congress passed the Amtrak Reform and Accountability Act which included a statute that required Amtrak to [only] be subject to the FOIA, “for any fiscal year in which Amtrak receives a Federal subsidy.”11

The upshot of this is that Amtrak is subject to the FOIA, but for some reason Congress has never made Amtrak subject to the Open Meetings Act.

By not being subject to the Open Meetings Act, Amtrak is not required to —

  • Open up its board meetings to the public;
  • Take votes to go into executive sessions (since it can keep all of it sessions closed in any case) and not share the contents of those sessions or of information that can be withheld from the public from those sessions;
  • Provide advance public notice of its meetings and their anticipated subject matter;
  • Keep a transcript, recording, or minutes of any meeting closed to the public or make any such transcript, recording or minutes which it does keep available to the public; or
  • Promulgate regulations concerning the holding of its meetings.12

It is possible that some of this information could be contained in documents which might be obtained under the FOIA, but there is no statutory right for the public to be notified of or to attend these meetings.

Bottom Line —

Amtrak has no legal obligation at the moment to open its Board meetings to the public or give advance notice of such meetings.

It does though have an obligation to provide copies of transcripts, recordings, meeting minutes, or other records of those meetings under the FOIA, except to the extent that the exceptions to FOIA disclosures apply.

As a political and policy matter, it would seem that Amtrak could benefit greatly by increasing the transparency of its Board of Directors in the eyes of both the public and public officials. Matters before the board that really need to be kept confidential could still be kept confidential by relegating such matters to the executive session portions of those meetings.

__________

1 Reeve Bull, The Government in the Sunshine Act in the 21st Century (Washington: Administrative Conference of the United States, 2014), 2.

2 5 U.S.C. § 552. Bull, The Government in the Sunshine Act in the 21st Century, 2.

3 Government in the Sunshine Act,  Pub. L. 94-409. See 5 U.S.C. § 552b.

4 5 U.S.C. § 551(1).

5 5 U.S.C. § 552b(a)(1).

6 49 U.S.C. § 24301(a)(3).

7 See Dept. of Transportation v. Association of American Railroads, 572 U.S. 43 (2015).

8 See Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374 (1995).

9 513 U.S. at 392; Riviere v. Dir. of HIDTA V.I. Div., No. 2012-50, 2018 U.S. Dist. LEXIS 52664, at *7-8 (D.V.I. Mar. 29, 2018).

10 “The Corporation shall be subject to the provisions of section 552 of title 5, United States Code”, To amend the Rail Passenger Service Act of 1970 in order to provide financial assistance to the National Railroad Passenger Corporation, and for other purposes., Pub. L. 92-316, §3(g). See 49 U.S.C. § 24301(e). Aug v. National Railroad Passenger Corp., 425 F. Supp. 946 (D.D.C. 1976).

11 “Section 24301(e) is amended by adding at the end thereof the following: ‘Section 552 of title 5, United States Code, applies to Amtrak for any fiscal year in which Amtrak receives a Federal subsidy.’ ” Amtrak Reform and Accountability Act of 1997, Pub. L. 105–134, §110(a).

13 5 U.S.C. § 552b.


Conclusions and next steps

As former Amtrak President Joe Boardman said in 2018, “Amtrak is not a privately held corporation whose fate is to be determined by a few individuals behind closed doors. It was created by the people and for the people and is funded by taxpayers who help to supplement Amtrak’s farebox revenue.”13

As a publicly-funded passenger rail service, Amtrak Board meetings should be open to the public and the media and meeting agendas, meeting minutes, and other material presented to the the board should be available, without the need to submit a FOIA request to obtain the information.

Every other publicly-supported passenger rail service in the country holds open and transparent board meetings, and we think Amtrak should too.

This issue could easily be remedied if Congress were to make Amtrak subject to the Open Meetings Act (5 U.S.C. § 552b), as some have said was their intent when the Government in Sunshine Act was passed back in 1976.14

We would encourage like minded individuals and organizations to reach out to Congress and ask them to remedy this situation.

__________

13 Boardman, Joseph A. (May 10, 2018), “Amtrak: Where is the public input? Where is the transparency?”, Railway Age.

14 See Printing of Notices for Amtrak pursuant to the Sunshine Act (Washington: Comptroller General of the United States, September 8, 1978).


Meeting agendas and minutes (January 2018 to October 2019)

We started sending FOIA requests to Amtrak for the agenda and minutes for each monthly meeting of Amtrak’s Board starting in September 2018.

Each request was submitted using the MuckRock on-line platform which automates the FOIA process.

The material that Amtrak has released to date is listed and linked below so that it is easily accessible to other interested parties.

As example, here is a copy of the meeting agenda for the Amtrak Board meeting that was held on May 22–23, 2019:

2018

January
Agenda
Minutes of Meeting | January 24, 2018
Minutes of Meeting | January 25, 2018

March
Agenda
Minutes of Meeting | March 21, 2018
Minutes of Meeting | March 22, 2018

May
Agenda
Minutes of Meeting | May 16, 2018
Minutes of Meeting | May 17, 2018

July
Agenda
Minutes of Meeting | July 18, 2018 (Redacted copy)
Minutes of Meeting | July 19, 2018 (Redacted copy)

August
Agenda
Minutes of Meeting | August 7, 2018

September
Agenda
Minutes of Meeting | September 17, 2018 (Redacted copy)
Minutes of Meeting | September 18, 2018 (Redacted copy)

October
Agenda
Minutes of Meeting | October 18, 2018

November
Agenda
Minutes of Meeting | November 14, 2018 (Redacted copy)
Minutes of Meeting | November 15, 2018 (Redacted copy)

December
Minutes of Meeting | December 4, 2018

2019

January/February
Agenda
Minutes of Meeting | January 31, 2019 (Redacted copy)
Minutes of Meeting | February 1, 2019 (Redacted copy)

March
Agenda
Minutes of Meeting | March 28, 2019 (Redacted copy)
Minutes of Meeting | March 29, 2019 (Redacted copy)

April
Minutes of Meeting | April 8, 2019

May
Agenda
Minutes of Meeting | May 22, 2019
Minutes of Meeting | May 23, 2019

July
Agenda
Minutes of Meeting | July 17, 2019 (Redacted copy)
Minutes of Meeting | July 18, 2019

September
Agenda
Minutes of Meeting | September 26, 2019
Minutes of Meeting | September 27, 2019 (Redacted copy)

October
Requested on June 16, 2020
Released on July 6, 2020
Agenda
Minutes of Meeting | October 18, 2019 (Redacted copy)

November
Requested on June 23, 2020
Response expected on March 5, 2021

December
Requested on June 28, 2020
Response expected on March 5, 2021

2020

January
Requested on July 2, 2020
Response expected on March 10, 2021

February
Requested on July 6, 2020
Response expected on April 5, 2021

March
Requested on July 18, 2020
Response expected on April 5, 2021

April
Requested on August 3, 2020
Response expected on April 12, 2021

May
Requested on August 3, , 2020
Response expected on April 12, 2021

June
Requested on August 10, 2020
Response expected on September 7, 2021

July
Requested on August 20, 2020
Response expected on April 30, 2021

August
Requested on September 3, 2020
No Responsive Documents

September
Requested on October 8, 2020
Awaiting Acknowledgement (now past due)

Recent developments

October 6, 2020  | An official in Amtrak’s FOIA Office said, “the Board of Directors is not currently meeting, we have no meeting minutes from 2020 to provide you. When the Board meets again in person, we will provide them to you.”

We are puzzled by this statement. On the one hand Amtrak suggests that the board is not meeting, which we find odd since all similar boards have moved their meetings to online platforms like Zoom due to the ongoing Covid-19 pandemic.

On the other hand they seem to be suggesting the board is meeting, just not in person.

On the surface it would appear that Amtrak may have simply decided that no further agendas or meeting minutes will be released at this time.

November 16, 2020 | We submitted a FOIA request to Amtrak for a copy of the bylaws for the corporation in an effort to understand how it could be that the board is not meeting at the moment.


Further reading

“Amtrak: Where is the public input? Where is the transparency?”
By Joseph Boardman | Railway Age | May 10, 2018
Joe Boardman was the president of Amtrak from 2008 until 2016. From 2005 until 2008 he held the job of Federal Railroad Administrator.

Access to Government Information in the United States: A Primer (PDF)
By Wendy Ginsberg and Michael Greene | Congressional Research Service | 2016

The Government in the Sunshine Act in the 21st Century (PDF)
By Reeve Bull | Administrative Conference of the United States | 2014

Reporter’s Handbook – The Federal Government in the Sunshine Act: A Mandate for Open Meetings
By Joseph Fleming and José León | Florida Bar Association | 2008

Berg, R. K., Klitzman, S. H., & Edles, G. J. (2005). An interpretive guide to the Government in the Sunshine Act. Chicago.: ABA, Section of Administrative Law and Regulatory Practice. ISBN 9781590315842


Thank you

Thanks goes out to the many people who offered comments, feedback and encouragement as we worked our way though this complex issue.

Page last updated: November 27, 2020
Page last reviewed: November 7, 2020