1. 1 ADMINISTRATIVE RECORDS November 6-7, 2001 Justin S. Tade Department of Interior Office of Solicitor

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3. 3 OUTLINE Importance of Administrative Records What Who When Where Why How More Outline

4. 4 OUTLINE Freedom of Information Act (FOIA) v. Administrative Records Things to Remember Freedom of Information Act – Exemption 5 – Foreseeable Harm Standard – ABOLISHED!

5. 5 Importance of Administrative Records

6. 6 Under the Administrative Procedure Act (APA), a court reviews an agency’s action to determine if it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2) (A). In making this determination, a court evaluates the agency’s whole administrative record. MFR Concept

7. 7 Importance of Administrative Records “If the Court finds that the agency, in view of the administrative record as a whole, has considered the relevant factors and articulated a rational connection between the facts found and the Secretary’s decision, there is no violation of the ESA or APA.” Friends of Endangered Species v. Jantzen, 760 F.2d 976, 982 (9 th Cir. 1985). FACTS – RATIONAL CONNECTION- HOLDING

8. 8 Importance of Administrative Records Agency decision need not be ideal, so long as it is not arbitrary or capricious, and so long as the agency gave at least minimal consideration to relevant facts in the administrative record. State of Louisiana ex rel. Gustev. Verity, 853 F. 2d 322 (5 th Cir. 1988).

9. 9 Importance of Administrative Records "This court has found that the U.S. Fish and Wildlife Service collected the available information, considered all relevant factors and made a reasoned decision based upon credible, substantial evidence in the record." Northern Goshawk Case.

10. 10 Importance of Administrative Records Pursuant to Fund for Animals v. Babbitt, 903 F. Supp. 96 105 (D.D.C. 1995), Court considers whether the agency: – Acted within the scope of its legal authority. – Explained its decision. – Relied on facts that have some basis in the record. – Considered the relevant factors. Agency must explain results

11. 11 Importance of Administrative Records What is arbitrary and capricious? –“The requirement that an agency action not be arbitrary and capricious includes a requirement that the agency adequately explain its result.... We may not supply a reasoned basis for the agency’s decision that the agency itself has not given.” American Lung Ass’n v. EPA, 134 F.2d 388, 392 (D.C. Cir. 1998).

12. 12 Importance of Administrative Records “[J]udicial review can only occur when agencies explain their decisions with precision for it will not do for a court to be compelled to guess at the theory underlying the agency’s action.” Greenpeace v. National Marine Fisheries Service, 80 F.Supp 2d 1137, 1149 (W.D. Wash. 2000).

13. 13 Importance of Administrative Records Remember your third grade teacher when you were learning to solve math problems, “SHOW YOUR WORK” “Explain this to me like I am a 5 year old.”

14. 14 Importance of Administrative Records Makes an impression on the court. Agency expertise is given deference. – Admin record should be a showcase of expertise. Department of Justice (DoJ) and Court are your audience. A good Administrative Record makes DoJ Attorney’s job easier. Remington

15. 15 Importance of Administrative Records

16. 16 WHAT Paper trail documenting agency’s decision ‑ making process and basis for agency decision. Include documents and materials whether they support or do not support the final agency decision.

17. 17 WHAT Documents and materials before or available to the decision-making office at time decision was made. Documents and materials considered by or relied upon by the agency. (Copyrights.) Privileged and non ‑ privileged documents and materials, but flag them. Let Solicitors/AUSA/DoJ sort it out.

18. 18 WHAT Documents and materials before the agency at the time of the challenged decision, even if they were not specifically considered by the final agency decision ‑ maker. Policies, guidelines, directives, and manuals. Communications from other agencies and especially the public.

19. 19 WHAT Materials that support or oppose the challenged decision. Provide materials to show how agency addressed opposition. Technical data, survey results, studies. Minutes of meetings or transcripts. Memoranda for record. Exclude materials not in existence at time of agency decision.

20. 20 WHAT Working Drafts. – As a general rule do not include “working drafts.” –“Deliberative Process” – Arizona Case – Include drafts circulated for comment if changes reflect significant input into the decision-making process (however remember “deliberative process”)

21. 21 WHAT Personal notes generally excluded. Excessively large documents may be referenced in the record and not included but be prepared to present to court immediately upon request. The final decision document (eg) Biological Opinion, Listing Decision, etc.

22. 22 WHO An agency employee should be designated to be responsible for compiling the administrative record. That individual will be responsible for certifying the administrative record to the court. Record compiler must coordinate with staff biologist(s) responsible for project.

23. 23 WHO S/he may keep a record of where s/he searched for the documents and materials and who was consulted in the process of compiling the administrative record. Staff biologist is key player. – Knows his/her own thought process. – Should do final scrub of record to ensure their thought process is adequately captured and logically organized.

24. 24 WHEN Ideally from the moment you start a project. When Notice of Intent is sent to Agency. When lawsuit/complaint is filed. Once requested by DoJ and/or Solicitor.

25. 25 WHERE TO FIND DOCUMENTS Contact all agency personnel including field, regional and Washington for file search. Contact former employees. Search all relevant agency files. Contact other agencies if they are not required to file their own administrative record.

26. 26 WHY Administrative record shows the Court why agency decision is not “arbitrary, capricious, abuse of discretion, otherwise not in accordance with law. If the agency fails to compile the whole administrative record, it may significantly impact our ability to defend and the court’s ability to review a challenged agency decision.

27. 27 HOW Determine whether a statute other than the APA applies in the case. Regulations may govern how to assemble a record. See, e.g., 40 C.F.R. 300.800 ‑ 300.825 (CERCLA); 40 C.F.R. Part 24 (RCRA Corrective Action). See also FRAP Rules 16 and 17 (record on review or enforcement and filing of the record).

28. 28 HOW Optimally, agency will compile administrative record as documents and materials are generated or received in the course of agency decision ‑ making process. Compiler of administrative record should keep record of where s/he searched for documents and who was consulted in the process. S/he should conduct a thorough search for the purpose of compiling the whole record, including the following:

29. 29 HOW Contact all agency people, including program personnel and attorneys, involved in final agency action and ask them to search their files and agency files for documents and materials related to the final agency action. Include agency people in field, regional and Washington offices.

30. 30 HOW Contact agency units other than program personnel, such as congressional and correspondence components. Determine whether there are agency files relating to final agency action. If there are such files, go search those files personally.

31. 31 HOW Where personnel involved in the final agency action are no longer employed by the agency, search the archives for documents and materials related to the final agency action. A former employee may be contacted for guidance as to where to search.

32. 32 HOW If more than one agency was involved in the decision ‑ making process, lead agency should contact other agencies ensure record contains all documents and materials considered or relied on by the lead agency. Search a public docket room to determine whether there are relevant documents or materials.

33. 33 Privileged Documents Record index must identify privileged documents and materials. Show documents are being withheld and why. Keep track of withheld privileged documents.

34. 34 Organization of Administrative Record Organize in a way that makes sense to you and especially someone new to the issue. – Chronological, topical, mix. Bates stamp. Index – spreadsheet format. – Index by Bates stamp number. – Copy of index in each volume. –Highlighting Index? Certification of truth and accuracy. Copies – expect at least 5 likely more.

35. 35 FOIA v. Administrative Records FOIA –Chilling effect on deliberative process is real. –Retain deliberative process documents. –Consider releasing documents that could technically be withheld if they help the agency. Admin Records –Difficult to argue chilling effect when deliberation is complete. –Release deliberative process documents. –FOIA rules do not apply except for privileged documents.

36. 36 Things to Remember Watch what you write in e-mails (excerpts from FOIA review). – Use of slang or personal life info imbedded in work e-mail. – “This should make for lots of litigation.” – “A lawsuit waiting to happen.”

37. 37 Things to Remember Privilege for business proprietary information. – ESA Section 10 consultations. Using “deliberative and predecisional” tags on documents.

38. 38 Freedom of Information Act (FOIA) Catalyst for litigation. Exemption 5. – Deliberative process privilege. – Attorney work-product privilege. – Attorney-client privilege. Foreseeable Harm Standard.

39. 39 FOIA – Exemption 5 Exemption 5 – Deliberative Process Privilege. – Threshold issue, “Whether a record is of the sort intended to be covered by the phrase ‘inter-agency or intra-agency memorandums.’” – Communication must be predecisional. – Communication must be deliberative.

40. 40 FOIA – Exemption 5 Communication must be predecisional. – Prior to adoption of agency policy. – Communication can be from agency lacking decisional authority. – Exemption 5 ordinarily does not apply to post decisional documents.

41. 41 FOIA – Exemption 5 Communication must be deliberative. – Makes recommendations. – Expresses opinions on legal or policy matters. – Comments on drafts.

42. 42 Questions

43. 43 Conclusion Show your work. Show how facts, reports, evidence and other documents in the Administrative Record support your well reasoned decision. See Administrative Record as the “Star Witness” that YOU build. Southwest Regional Solicitor’s Office telephone number.