This article was authored by Felix Bajandas, the principal court management consultant at the National Center for State Courts, and Gavin Young, Counsel for Congressional Affairs at ACUS.
This article first appeared in the Regulatory Review's series on "Improving Agency Procedure" that focuses on the ACUS Recommendations adopted at the June 2018 Plenary Session. Reposted with permission. The original may be found here, and the Regulatory Review's entire series may be found here.
It can be easy to take technological advances for granted, but even in the context of administrative law, progress is still possible. In particular, federal agencies engaged in adjudication can use electronic storage and processing of case files to expand public access and transparency, increase efficiency and accuracy in the processing of cases, meet statutory requirements more easily, and reduce costs overall.
Due to a variety of constraints, or possibly by design, some agencies have yet to implement, or fully implement, electronic case management. As a result, an individual or business involved in an administrative determination by an agency can be confronted with a wide variety of processing procedures—ranging from fully paper to fully digital—depending on the agency.
Recognizing the possible benefits of electronic case management for agencies that have yet to go digital, the Administrative Conference of the United States (ACUS) recently adopted a recommendation that provides a roadmap for considering if, and how, agencies should implement an electronic case management system (eCMS).
The decision to implement an eCMS often hinges on cost considerations. But even if an agency previously found that the costs of an eCMS implementation outweigh the benefits, decreasing computing costs over recent years mean that the results of such an analysis may be different this time around.
Included in the ACUS recommendation are several factors an agency should consider when weighing the costs and benefits of an eCMS implementation, such as budgeting for technology and staff, the potential for reducing agency costs for storing and maintaining paper records, and the value of fostering public service by providing greater accessibility to records.
The recommendation also urges decision-makers to consider other agencies’ experiences in implementing an eCMS, as those experiences are likely to reveal additional factors and likely missteps.
A good place to begin considering other agency experiences with an eCMS is a report prepared for ACUS as it considered its eCMS recommendation. The report explores the steps undertaken by six agencies that initiated or expanded eCMS implementation.
For example, the Occupational Safety and Health Review Commission performed a full evaluation of its appeals process with potential vendors to minimize the need to modify off-the-shelf software.
The Federal Mine Safety and Health Review Commission found it beneficial to maintain all open cases in both paper and electronic form as it transitioned to a new case electronic management system over six months to prevent the loss of any case data.
These examples suggest the types of factors an agency may want to consider when determining whether and how to implement an eCMS, but there are certain features that must be part of any eCMS implementation. One of these features is that agencies must take care to protect the security of their sensitive data.
The way to keep data safe yet available for the public users is to understand potential data access challenges early in eCMS implementation. Problems may arise from sharing confidential data publicly, for example. Therefore, it is important to categorize data into public, private, and confidential.
Other considerations for data security are encryption, multi-factor identification, malware and anti-virus detection software, and firewalls that can counter threats and ensure secure systems. Overlooking these security factors can lead to viruses and worms, attacks that affect system performance, and potential loss of non-disclosable information.
Despite these risks, an eCMS often adds significant value by providing non-agency personnel with access to case materials, accommodating multiple users via networked computer systems, and sending information to offsite agency members.
One additional benefit not yet mentioned may tip the scales in favor of implementation for agencies that may be on the fence: the abundance of structured data generated by an eCMS. These data afford opportunities for analysis that go far beyond opportunities available in the past. With staff trained in data science and proper planning, data analytics can identify issues in need of attention, whether in quality assurance review, investigation for potential fraud, or other agency actions.
In addition, data analytics can uncover other problems in case adjudication, so that information obtained can be used to improve training and monitor performance, including through staff productivity and timeliness. The possibilities for improvement through data analytics are myriad. One last possibility worth mentioning is that data analytics can help the agency to formulate clearer policy by identifying policies that are open to multiple interpretations. In agencies that use adjudication, for instance, data analytics can help identify when particular topics covered under existing policy tend to go to appeal courts due to differing interpretations.
The recommendations adopted by ACUS do not automatically guarantee success in the monumental task of implementing an eCMS or, by extension, transforming an agency culture that may currently rely on paper for its adjudicatory operations. The ACUS recommendations do, however, provide a framework necessary for achieving the goal of improving agency service through eCMS implementation. Continuously advancing the use of technology with these recommendations in mind, perhaps through incremental advancements, will help make agency adjudications more accessible, transparent, efficient, and accurate for the populations they serve.