Equalizing Agency Disclosures | Regulatory Review

The law requires agencies to post some legal materials online and disclose other materials if a member of the public requests them. But should the public have access to all of an agency’s regulations without having to submit a request?

The answer is yes, according to a forthcoming article by Bernard Bell, Cary Coglianese, Margaret Kwok, Michael Herz, and Orly Lobel. This team of law professors recommends legislative reforms to expand open disclosure of legal documents by agencies. Their recommendations stem from a year-long study and 150-page report they completed at the request of the Administrative Conference of the United States.

Bell and his colleagues distill the conclusions of their bill into a single principle: “All regulatory materials that agencies are required to disclose upon request by a member of the public should be made clearly available to the public on the agency’s Web site.” They then make a series of recommendations to Congress to ensure that agencies better comply with that principle.

They define agency legal materials as including all documents that focus on the legal rights and obligations of members of the public, as well as any materials that articulate legal constraints on the agencies themselves. Because these materials constitute agency law, Bell and his colleagues argue that they are among the types of agency documents that should be most readily available to the public.

They divide their series of recommendations to Congress into three parts.

The first set of recommendations concerns precisely what legal materials Congress should require agencies to disclose. These recommendations call on Congress to amend the Freedom of Information Act to require affirmative disclosure of documents that are currently publicly available only upon request. These documents include final opinions and orders, written enforcement decisions, and interagency memoranda of understanding. Bell and his colleagues also recommend that Congress amend sections of the E-Government Act, the Federal Register Act, and the Presidential Records Act to promote the disclosure of various other legal materials.

If Congress follows through on these recommendations and requires agencies to disclose additional categories of documents than they already do, agencies could face greater burdens. For example, agencies may have to process large sets of legal materials and then post them online.

To address this problem, Bell and his colleagues recommend that Congress adopt a provision authorizing agencies, under limited circumstances, to use notice-and-comment provisions to exempt themselves from disclosure requirements. The law professors explain that such an exemption would be justified when disclosure would be impractical for the agency and of little value to the public. They emphasize that notice-and-comment is important because the public should be involved in making decisions that affect its access to agency law materials.

In the second set of recommendations, Bell and his colleagues also discuss them in detail in their upcoming paper. How agencies should disclose their legal materials. They argue that the new rules should allow each agency to adjust its procedures and practices. But in doing so, Congress should require agencies to develop detailed disclosure plans that would themselves be publicly available. Bell and his co-authors outline eleven key elements of such plans, including clear descriptions of the types of legal materials an agency plans to disclose and lists of locations on the agency’s website where the public can find those materials.

In a third set of recommendations, Bell and his colleagues present a series of ideas for strengthening agencies’ incentives to disclose legal materials. They recommend that Congress expressly make agency affirmative disclosure provisions enforceable in private lawsuits. In addition, Bell and his colleagues suggest that whenever a member of the public seeks specific legal materials that an agency should have affirmatively disclosed but failed to do so, the agency should provide the materials to the requester on an expedited basis and without charge.

Bell and his colleagues said making disclosure requirements court-enforceable and requiring agencies to provide requested materials promptly and free of charge would encourage agencies to be vigilant and proactive in disclosing all legal materials.

They argue that their three sets of recommendations merely call on Congress to require agencies to use disclosure practices that have already been shown to be feasible, since nearly all of them have some prior precedent in the current practices of some federal agencies. Bell and his colleagues argue that, like all laws, the legal materials produced by agencies are of significant public interest. The public should not therefore have to request such materials from agencies but should have easy, online access to them at any time.