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Affirmatively Disclosing Agency Legal Materials

September 20, 2023

Prof. Cary Coglianese proposes statutory revisions aimed at increasing online accessibility of federal agencies’ legal materials.

Following a report co-authored by Cary Coglianese, Edward B. Shils Professor of Law and Professor of Political Science, the Administrative Conference of the United States (ACUS) has called on Congress to pursue statutory reforms aimed at improving the public’s access to federal agencies’ legal materials.

In an essay for The Regulatory Review, Coglianese and his coauthors, Bernard W. Bell (Rutgers Law), Michael Herz (Benjamin N. Cardozo School of Law); Margaret B. Kwoka (The Ohio State Moritz College of Law); and Orley Lobel (University of San Diego Law), explains the process and deliberation underlying the ACUS recommendations. They write that ACUS commissioned them as a consultant team “to craft potential statutory revisions that would ensure greater online accessibility of agency legal materials.” The group conducted research, solicited comments, and held a series of meetings with ACUS members and affiliates, which included representatives from 50 federal agencies, all of which resulted in 157-page report, which reflects “a well-deliberated consensus that is based on extensive analysis and broad input.”

“One simple principle animates our entire report: All legal material that agencies must disclose upon request by a member of the public should be affirmatively made available on agency websites,” they write.

An edited version of the report is forthcoming in the Michigan Journal of Environmental & Administrative Law.

From The Regulatory Review:

Cary Coglianese, Edward B. Shils Professor of Law and Professor of Political Science Cary Coglianese, Edward B. Shils Professor of Law and Professor of Political ScienceAdministrative agencies’ law-generating powers have long been recognized, as has the importance of making agency-generated law available to the public. In 1971, the Administrative Conference of the United States (ACUS) recommended that “agency policies which affect the public should be articulated and made known to the public to the greatest extent feasible.” Over the years, ACUS has adopted numerous recommendations to that end.

Congress has also embodied this publicity principle in the Administrative Procedure Act, which mandates that agencies affirmatively publicize certain categories of their legal materials. Those legislative provisions are reinforced by the Freedom of Information Act (FOIA), which aims to enable “the public readily to gain access to the information necessary to deal effectively and upon equal footing with the federal agencies.”

FOIA imposes on agencies an obligation to disclose all agency records upon request, subject to exemptions and exclusions that enable agencies to withhold certain requested records if those disclosures would cause foreseeable harm. Some scholars have criticized this request-driven, reactive disclosure approach, especially when it is the public’s only means for gaining access to agency legal materials not clearly covered by affirmative disclosure provisions in federal law.

Provisions requiring the affirmative disclosure of legal materials have also proven to be deficient. Agency legal materials comprise documents that “establish, interpret, apply, explain, or address the enforcement of legal rights and obligations, along with constraints imposed, implemented, or enforced by or upon an agency.” Unfortunately, these materials are not always easily accessible to members of the public. This deficiency is striking in an internet era with digital technology that has vastly expanded agencies’ capacity to provide affirmative access to their legal materials… . 

Coglianese, Director of the Penn Program on Regulation (PPR), is a globally renowned expert on regulatory law, analysis, and management who has produced extensive action-oriented research and scholarship. He has consulted with regulatory organizations around the world and is the founding editor of the peer-reviewed journal Regulation & Governance.

The Regulatory Review is a daily online publication that provides accessible coverage of regulatory policymaking and enforcement issues across a full range of regulatory topics and from a variety of perspectives.

Launched in 2009 and operating under the guidance of Coglianese, The Review is edited by Penn Carey Law students and is part of the overarching teaching, research, and outreach mission of the PPR, which draws together more than 60 faculty from across the University of Pennsylvania.

Read the full piece at The Regulatory Review.

Read the forthcoming article.