ACUS Study on the Disclosure of Adjudication Materials on Agency Websites

Publication first appeared in the American Bar Association Section of Administrative Law & Regulatory Practice's Administrative & Regulatory Law News Spring 2017 edition. Reposted with permission.

Federal administrative adjudication affects an enormous number of individuals and businesses, across a range of regulated activities and benefits programs. The many orders, pleadings, motions, briefs, petitions, discovery materials, and other records generated by agencies and parties involved in formal and semi-formal adjudicative proceedings bespeak not only the proceedings’ complexities, but also the parties’ appreciation of the proceedings’ consequences.

Given the importance of federal administrative adjudication, the materials generated during the course of it take on special significance. Insofar as adjudicative proceedings involve the application of federal power by unelected officials in the disposition of disputes between or involving private parties, the records associated with such proceedings are of public importance. In addition, administrative adjudication documents provide insight into internal agency processes and the laws and procedures governing proceedings, and can serve as ready-made models for private parties (especially those who are self-represented) in drafting their own materials.

Acknowledging the public significance of these documents, many congressional and executive directives mandate or encourage the online disclosure of certain adjudicatory materials. Under the Freedom of Information Act (FOIA), for example, agencies must make “final opinions … [and] orders, made in the adjudication of cases,” publicly available “in an electronic format.” 5 U.S.C. § 552(a)(2)(A). As interpreted, this provision generally only applies to “precedential” adjudication decisions, to the exclusion of all other decisions and supporting adjudication records. Other laws and policies support broader electronic dissemination of adjudicatory materials than required by FOIA, although they fall short of actually requiring disclosure.

Agencies generally rely on their individual websites to comply with FOIA and other relevant online transparency laws and policies. As well as providing information on agencies’ operations and activities, agency websites display many of the substantive legal documents agencies generate, including binding orders and, in some cases, supporting adjudication documents produced during the course of adjudicative proceedings.

Agency websites vary in terms of their general navigability and the comprehensiveness of their collections of adjudication materials. To form a clearer picture of agency practices in this context, as well as to evaluate agencies’ compliance with FOIA and other relevant laws and policies, ACUS undertook a study on the dissemination of adjudication materials on agency websites, for which I serve as the in-house researcher.

The study surveyed the websites of 24 agencies that engage in adjudication and assessed the degree to which each maintained accessible, comprehensive collections of adjudication materials. Accessibility was determined by gauging the general ease by which users are able to find and access adjudication materials on the surveyed websites. This was measured by observing whether each website provided access to a search engine and a site map or index, or both, from its homepage. These features were selected due to their potential usefulness in directing users to adjudication materials.

The comprehensiveness of agencies’ collections of adjudication materials was measured by a general examination of each website’s disclosure techniques and a determination as to whether each website maintained copies of first line adjudicators’ decisions, appellate decisions (for agencies that maintained appellate systems), and supporting adjudication materials (i.e., pleadings, motions, briefs, and other materials filed in adjudicative proceedings). The results of the surveys were bolstered by telephone and e-mail conversations with personnel from agencies that maintained comprehensive or near-comprehensive collections of adjudication materials, and case studies of three representative websites that each sat on a different point on the continuum of comprehensiveness and navigability revealed during the study.

The information garnered from the surveys, interviews, and case studies indicated that agency websites are, on the whole, adequate repositories of adjudication materials. Nonetheless, because some websites were much more comprehensive and navigable than others, the project report stemming from the study offers a series of recommendations—most of which were drawn from agency practices identified during the study—designed to encourage agencies to increase access to adjudication materials on their websites. These recommendations include advice on grouping adjudication records together within individual docket pages and displaying links to adjudication sections in easily accessible locations on the website’s homepage. Although the report is written with the understanding that agencies are subject to unique programming, stakeholder, and financial constraints, the modest nature of the recommendations—and the fact that their implementation may have offsetting financial and other benefits—should make them appealing to a range of agencies.

The in-house project report was completed in April 2017. Soon after, ACUS’s Committee on Administration and Management issued recommendations for agencies to improve their practices in regard to the dissemination of adjudication materials on their websites. If approved for consideration by ACUS’s Council, the project will then be discussed and voted on by the full Assembly during its June 2017 plenary session.