Publication first appeared as a blog post on Notice & Comment, a blog from the Yale Journal on Regulation and the ABA Section of Administrative Law & Regulatory Practice, on June 9, 2017. Reposted with permission. 

While much scholarly and public attention is paid to the Freedom of Information Act’s (FOIA) request-driven model of disclosure, less well known is the statute’s requirement that agencies publicly disclose certain government records without waiting for a request from the public.  Federal agencies must “make available for public inspection in an electronic format” specific types of important government records, including final opinions and orders issued in administrative adjudication proceedings, statements of policy not published in the Federal Register, and copies of records that have been previously released and requested three or more times (i.e., the so-called “Rule of 3”).  Agencies generally comply with this requirement by posting such materials on their websites.

Last June, Congress passed and the President signed the bipartisan FOIA Improvement Act of 2016, which created several new disclosure and reporting requirements for agencies.  Importantly, the new Act encourages more expansive proactive disclosure of federal records.

Inspired in part by the FOIA Improvement Act, the Administrative Conference of the United States conducted a study of agencies’ online disclosure of a particularly important category of government materials—opinions, orders, pleadings, briefs, and other materials issued and filed in administrative adjudication proceedings.  The Conference’s Committee on Administration and Management (one of its five standing committees) issued a proposed recommendation based on the study’s resulting report.  The proposed recommendation offers a number of best practices and factors designed to encourage agencies to increase access to adjudication materials on their websites, including a recommendation that agencies consider maintaining links on their websites to copies of all decisions and supporting records issued and filed in adjudication proceedings (in excess of FOIA, which, in regard to adjudication materials, only requires the proactive disclosure of final opinions and orders) and guidance on offering relevant filtering and advanced search options on their websites.  The proposed recommendation will be considered by the full Conference membership at the agency’s upcoming June 2017 Plenary Session.

Increased proactive disclosure increases transparency while reducing agencies’ costs and administrative burdens.  The proposed Administrative Conference recommendation encourages agencies to engage in more expansive online proactive disclosure practices, thus furthering the spirit of the FOIA Improvement Act.