This article was authored by Jeremy Graboyes, Deputy Research Director at ACUS, who authored the research report upon which the recommendation discussed in this essay was based.
This article first appeared in the Regulatory Review's series on "Seeking to Improve Administrative Transparency and Expertise" that focuses on the ACUS Recommendations adopted at the December 2019 Plenary Session. Reposted with permission. The original may be found here, and the Regulatory Review's entire series may be found here.
At its December 2019 plenary session, the Administrative Conference of the United States (ACUS) approved a new recommendation, Independent Research by Agency Adjudicators in the Internet Age.
The title of this ACUS recommendation is a modern take on a set of old questions or, as Alan Morrison put it, a case of “new wine in old bottles.” These questions include: When may adjudicators venture outside the “exclusive record” of materials submitted by the parties in agency adjudications? What kinds of facts can they look for? Which resources can they consult? What procedures must they follow when they do so?
The Supreme Court considered these questions in a line of early twentieth-century opinions that solidified official notice as the administrative analog to judicial notice. The seminal 1941 report of the Attorney General’s Committee on Administrative Procedure included a study of the “Utilization of Material Not Offered as Evidence.” Five years later, the Administrative Procedure Act codified the notion that agencies may rely on a “material fact not appearing in the evidence in the record,” so long as the parties have a chance to rebut it.
But what has changed over the past several decades is the information environment in which agency adjudicators operate. Once largely limited to the physical materials in agency libraries, adjudicators now have the “vast library” of the internet at their fingertips.
The simple fact that decision makers can quickly access so much information means there is always at least the temptation to learn more, to corroborate testimony, to complete a deficient record, to circumvent lengthy testimony, or to verify an intuition. In some of the most egregious cases, for example, adjudicators have used the information they have found independently to quiz parties on bride prices in Zimbabwe, the tenets of Sikhism, and Bible trivia, or to question a party’s ethnic identity.
Besides the sheer volume of available content, the internet offers new forms of information and new ways to find it. Although we have come a long way since a judge condemned the internet as “one large catalyst for rumor, innuendo, and misinformation,” the low costs of web publication do raise questions about the reliability and authenticity of some internet information and demand a new rubric for evaluating it.
As I explore in a report I prepared to inform deliberations over ACUS’s recent recommendation, independent research can promote accuracy and efficiency in agency adjudication. In some contexts, independent research is so long-established as to be nearly unremarkable. Immigration judges routinely rely on U.S. Department of State country reports, for example, and a Social Security Administration regulation takes “administrative notice” of job information in the Dictionary of Occupational Titles.
In other contexts, though, independent research has raised concerns about bias, inaccuracy, and inefficiency. This is especially true for newer, internet-based sources of party-specific information, such as social media. The Social Security Administration recently scrapped a proposal to consider social media posts as part of the evaluation process for disability claims. Some administrative law judges, however, have called for greater leeway to look at Facebook profiles, especially when “something in the case file suggests a claimant is not telling the whole truth.”
Out of these same concerns about reliability, parties in agency disputes have challengedadjudicators’ independent review of a party’s business website, personal website, an employer’s website, an online news article of a local event, an obituary, and more. These challenges are sometimes successful and sometimes not.
Meanwhile, courts are tackling the same questions.
For example, in a 2015 case, Rowe v. Gibson, the U.S. Court of Appeals for the Seventh Circuit split over the propriety of using the internet to research independently gastroesophageal reflux disease and Zantac.
An extensive academic and professional literature has developed on the subject of independent internet research. Most states have adopted an American Bar Association (ABA) model rule that directs judges not to “investigate facts in a matter independently” and to “consider only the evidence presented and any facts that may properly be judicially noticed.” An ABA formal opinionand at least one state ethics opinion have since applied the rule to facts.
Although this conversation about judicial ethics more broadly can provide important insights for agency practice, administrative and judicial decision making differ in important ways.
Some federal agency adjudicators make policy. They are also specialists, focusing on a narrow range of legal and factual matters that make them more familiar with the methods and research in their field.
In addition, adjudicators function within institutions that actively collect and analyze vast amounts of specialized knowledge. And they are often less beholden to the adversarial model. Many take an active part in questioning parties and witnesses; rules of evidence and procedure are often looser; and some adjudicators even have an affirmative duty to help parties develop the record.
Most significantly, agencies have greater flexibility to formulate rules of practice. As a practical matter, courts have developed the law of independent research through a slow and decentralized process in which individual courts resolve, on a source-by-source and case-by-case basis, whether independent research is appropriate. Agencies, on the other hand, are comparatively well-equipped to designate which independent inquiries are generally appropriate or inappropriate, and which sources adjudicators should or should not use to undertake them.
In fact, many agencies have already done so. For example, the Social Security Administration’s adjudication manual prohibits adjudicators from browsing disability claimants’ social media accounts. The Executive Office for Immigration Review’s website contains an extensive virtual library of governmental and non-governmental resources on country conditions.
ACUS’s recommendation builds on these examples by encouraging agencies to designate publicly those sources or categories of sources they deem generally appropriate or inappropriate for independent research. Following the model of the Executive Office for Immigration Review’s virtual library and other agency websites, the ACUS recommendation encourages agencies to provide whenever possible web access to the sources they designate as appropriate.
The recommendation also urges agencies that permit adjudicators to consult undesignated sources independently to “establish publicly available policies to help adjudicators assess the authenticity and reliability of information.” It includes a list of indicia of authenticity and reliability that agencies may wish to include. Adjudicators will find the list helpful, even in the absence of such policies.
When adjudicators independently take notice of internet evidence, the record is vulnerable to link rot—a term used to describe when links to webpages move or change. To maintain the record for administrative and judicial reviewers, the ACUS recommendation urges agencies to preserve internet evidence in a stable, permanent form.
At its core, ACUS’s recommendation encourages agencies to develop clear, fair, and efficient policies to ensure parties have ready access to all sources and a meaningful opportunity to rebut or give different perspective to officially noticed facts and the inferences drawn from them.
The internet has dramatically augmented and reshaped the questions posed by agency adjudicators’ independent research. ACUS’s recommendation provides agencies and agency adjudicators with a helpful blueprint they can follow to take advantage of new sources of information while still seeking to ensure unbiased, accurate, and efficient decision making.
The views expressed in this essay are those of the author and do not necessarily represent the views of the Administrative Conference or the federal government.