For decades, agencies, courts, and scholars have debated when it is consistent with an agency adjudicator’s role to independently research the facts of the cases that come before her. This debate has only intensified with the radical growth of the internet over the past several decades.
Adjudicators today have easy access to greater amounts of information than ever before. This includes both traditional sources of information—treatises, dictionaries, newspapers, magazines, directories, maps, and public records—and newer resources, such as blogs, social media, openly editable encyclopedias, and personal and professional websites.
At the same time, new and difficult questions have emerged concerning the sources and methods of independent internet research by adjudicators, the efficiency and accuracy of such practices, and the procedures adjudicators follow when they use independently obtained information.
ACUS is exploring these questions through its current project on Internet Evidence in Agency Adjudication. As I detail in a report prepared for the Conference’s consideration, some agencies have already developed policies on aspects of independent research. Adjudicators and policymakers elsewhere are just beginning to have these conversations.
The draft recommendations approved by the Adjudication Committee offer procedural best practices for adjudicators in evaluating the accuracy, reliability, and authenticity of internet materials and urge agencies to issue appropriate policies to guide adjudicators. If placed on the agenda by the Council, the full Assembly will discuss and vote on the Recommendation during the agency’s 72nd plenary session, currently scheduled for December 12.
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