This article was authored by Kristin Hickman, the McKnight Presidential Professor in Law at the University of Minnesota Law School and the Judicial Review Committee chair at the Administrative Conference of the United States, and ACUS Deputy Research Director Mark Thomson.
This article first appeared in the Regulatory Review's series on "Improving the Accessibility and Transparency of Administrative Programs" that focuses on the ACUS Recommendations adopted at the December 2020 Plenary Session. Reposted with permission. The original may be found here, and the Regulatory Review's entire series may be found here.
Statements made in the course of litigation have a certain heft. Because they are often made under oath and subject to various ethics requirements, they tend to be trustworthy in ways that ordinary statements are not. They also can carry consequences, not just for the parties to the litigation, but potentially for anyone subject to the laws affected by the litigation.
When federal agencies are the ones making statements during litigation, the statements’ significance is amplified for at least two reasons. First, because agencies’ litigation statements—whether made in pleadings, briefs, declarations, settlements, or other official filings—frequently clarify how the federal government interprets and aims to enforce laws and policies, they can help people understand their legal obligations. Second, public access to the statements agencies make in litigation promotes accountable and transparent government. The public has good reason to want to know what federal agencies say in the course of litigation.
A pair of recent Supreme Court cases illustrates this point. Department of Homeland Security v. Regents of the University of California involved the legality of executive actions related to the Deferred Action for Childhood Arrivals program. Department of Commerce v. New York concerned the legality of executive actions adding a citizenship question to the Census.
Both cases garnered widespread public attention because they involved consequential policy decisions. In each of these cases, although subregulatory guidance documents helped explain some aspects of the agency decision at issue, the agency’s litigation filings and the subsequent court opinions elaborated the agency’s reasoning and provided important additional context for the public’s understanding of the agency’s action.
Federal law imposes few requirements on agencies to make litigation materials readily accessible to the public. Only the Freedom of Information Act requires agencies to disclose filings such as pleadings, briefs, declarations, and settlements, and the Act only requires disclosure when members of the public specifically ask for these materials.
The laws governing federal courts’ disclosures are not much stronger. The E-Government Act of 2002 requires federal courts to make their written opinions, including opinions in cases involving federal agencies, available on their websites. But most courts’ websites have limited search functionality, making it hard for users to identify cases about specific topics or agencies.
The most comprehensive sources of agency litigation filings and related court decisions—the Public Access to Court Electronic Records (PACER) service and subscription legal research services such as Westlaw and Lexis—require registration and charge usage fees that can discourage people from using them to find agencies’ litigation filings and related court decisions.
To promote greater access to agency litigation materials, the Administrative Conference of the United States (ACUS) recently issued a recommendation titled Agency Litigation Webpages.
The ACUS recommendation defines an agency litigation webpage as a webpage providing access to agency litigation materials, which include publicly filed pleadings, briefs, and settlements, as well as court decisions about agencies’ regulatory or enforcement activities. Many agencies—including the Securities and Exchange Commission, the Federal Trade Commission, the Federal Election Commission, and the National Labor Relations Board—already maintain agency litigation webpages. Some of those agencies report hundreds of thousands of unique visits to their webpages annually, something people might find surprising.
The ACUS recommendation focuses on two sets of issues: first, what litigation materials agencies should post, and, second, how and where to post them. With respect to the first, the recommendation:
Encourages agencies to provide greater access to agency litigation materials;
Notes that, rather than posting all of their litigation materials, agencies with large volumes of court litigation might reasonably post examples of filings from routine types of litigation and all or a portion of the filings from cases raising important or unusual questions;
Calls for agencies to implement safeguards to protect relevant privacy or business interests implicated by the disclosure of agency litigation materials; and
Specifies criteria for agencies to weigh when deciding whether the costs of publishing certain materials outweigh the benefits of disclosure.
The ACUS recommendation also urges agencies to “disclose materials in a way that gives a full and accurate picture” of the agencies’ litigation positions and identifies several factors for agencies to consider in doing so. This suggestion, which was the subject of considerable discussion during the ACUS committee process, is noteworthy because it shifts the focus beyond mere disclosure toward considerations of intelligibility.
In the modern world, many people are inundated with more information than they can fully process. Frequently, information is provided without context—sometimes intentionally, sometimes not—or in other ways that make it difficult for people to understand. Under these conditions, principles of good government arguably require agencies to present information in accessible and intelligible ways, rather than merely dumping information before the public.
Suggestions from the ACUS recommendation that address how and where agencies should post litigation materials are similarly focused on accessibility and, indirectly, intelligibility. Those suggestions emphasize that agencies should make materials easy to search for and find on their litigation webpages.
Agencies can provide context for their litigation materials by maintaining organized litigation webpages. The ACUS recommendation, for example, sets various criteria for website search and filtering options—including topic, date, the statute or regulation at issue, and so on—that contextualize the posted litigation materials. Likewise, the recommendation’s suggestions about website filtering tools would allow visitors to sift through litigation materials according to desired features and examine how different litigation materials or matters are related.
Agency litigation webpages that follow the ACUS recommendation can play a valuable role in conveying information to the public and giving the public tools to better understand that information. In that sense, agency litigation webpages can be models of proactive and practical transparency in an era when society has unprecedented access to information.