Overly restrictive administrative records and the frustration of judicial review.

• Author: Saul, James N.

1. INTRODUCTION II. JUDICIAL REVIEW OF AGENCY DECISION MAKING A. Agency Actions Under the Administrative Procedure Act B. The "Record Rule" as Explained by the Supreme Court C. Recognized Exceptions to the Record Rule 1. Bad Faith on the Part of the Agency 2. A "Bare" Record that Frustrates Effective Judicial Review 3. Agency Considered Materials that it Failed to Include in the Record 4. Additional Information Is Necessary to Explain Complex Issues III. COMPILING AN ADMINISTRATIVE RECORD: THE LEGAL FRAMEWORK A. The Agency's Presumption of Regularity B. What Constitutes the "Whole Record"? IV. ADMINISTRATIVE RECORDS IN MODERN AGENCY PRACTICE: USE AND ABUSE A. Agency Guidance on Administrative Records 1. DOJ Guidelines 2. Fish and Wildlife Service Guidelines 3. NOAA Fisheries Guidelines B. "Supplementing" vs. "Completing" the Administrative Record C. Deliberative Documents in the Record 1. The Deliberative Process Privilege 2. Agency Misuse of the Deliberative Process Privilege V. CONCLUSION I. INTRODUCTION

   The record rule, as established by the United States Supreme Court in Citizens to Preserve Overton Park, Inc. v. Volpe (Overton Park), (1) serves a valuable function. It ensures that courts do not engage in free-roaming de novo review of agency decisions, instead leaving to the expert agencies the difficult task of scientific and policy assessment for which they were created in the first place. But in an era of closed government, (2) the record rule is increasingly abused by agencies seeking to protect their decisions from the probing eyes of the court. Federal agencies, and specifically environmental agencies, abuse the record rule in two alarming ways.

   First, they blur the distinction between a complete administrative record, which the Supreme Court requires for effective judicial review, and a supplemented administrative record, which is appropriate only in certain circumstances when the complete record is insufficient. (3) Courts also have difficulty discerning the difference between the two, and judicial review is hampered as a result. (4) Because a reviewing court must ensure it has the full and complete record prior to engaging in review of an agency action, (5) the burden that a plaintiff must meet before the court allows completion of the record should be significantly lower than the burden a plaintiff must meet before the court allows supplementation of the record with additional evidence.

   Second, several federal agencies have begun to unilaterally withhold allegedly deliberative documents from the record without following the minimal procedures required to assert the deliberative process privilege. (6) This makes it exceedingly difficult for plaintiffs to challenge an agency's claim of privilege, and leaves a court to guess whether it truly has before it the full and complete record. Procedures established under the Freedom of Information Act (7) make clear that an agency seeking to prevent disclosure of allegedly deliberative documents must come forward with an assertion of privilege that is rationally justified, so that other parties have the opportunity to challenge the claim of privilege, and so the reviewing court may satisfy itself that the privilege is properly applied and in the public interest. A few courts have begun to recognize the necessity of these simple procedures, (8) and they should be widely incorporated in the context of the administrative record.

   Part II of this Comment gives a brief overview of judicial review of agency actions under the Administrative Procedure Act (APA), (9) and describes the evolution of the so-called "record rule." Part III addresses the judicial and administrative framework for the compilation and review of administrative records. Part IV details the ways agencies have begun to abuse the record rule, focusing on the difference between completing and supplementing the record, and the misapplication of the deliberative process privilege. Some contemporary judicial reactions to these attempts are examined, and I demonstrate why certain courts have provided a model by which these abuses can be reversed.

2. JUDICIAL REVIEW OF AGENCY DECISION MAKING

   1. Agency Actions Under the Administrative Procedure Act

      Federal agencies are subject to the required procedures of the APA. (10) The APA generally contemplates two different types of agency actions, adjudications (11) and rulemakings, (12) and two different levels of procedural formality, formal and informal. (13) The resulting four categories of agency actions are far from distinct, and it can often be a challenge distinguishing between them. (14) For purposes of this Comment, I will address solely informal rulemakings, as that is by far the most prevalent type of agency action in the field of environmental regulation. (15)

      The scope of judicial review of informal agency actions is contained in the APA, and is usually called "arbitrary and capricious" review. (16) Just how far a reviewing court can go in examining an agency decision is a subject of much debate, and beyond the scope of this Comment. Suffice it to say that there exists a spectrum of scholarly opinion, ranging from full de novo review at one end to maximum deference to the agency at the other. (17) Typically, when an agency decision is found to be arbitrary or capricious, it is remanded to the agency for further consideration or explanation. (18)

   2. The "Record Rule" as Explained by the Supreme Court

      Generally speaking, judicial review of informal agency actions is confined to a review of the record that was before the agency at the time it made its decision. (19) This basic precept of administrative law, often called the "record rule," (20) has only a marginal basis in the language of the APA itself, at least as applied to informal agency actions. Section 706 of the APA, which prescribes the scope of review of agency actions, explains that, in making its determinations, a reviewing court "shall review the whole record or those parts of it cited by a party." (21) But the statute gives no further guidance on what comprises the record, or how to determine if the record is complete.

      It is important at this juncture to contrast the record compiled as part of a formal agency proceeding (be it adjudication or rulemaking) from the record on review of an informal agency rulemaking--the latter of which is the subject of this Comment. In formal proceedings, for which hearings are required, (22) the agency compiles an evidentiary record not unlike those created by trial courts. Thus, a court's review of an agency decision is similar to an appellate court's review of a trial court's decision. (23) The court examines the evidence presented to the agency and the legal arguments made by the parties as included in the record below. (24) This review of the record in formal agency proceedings is wholly consistent with our system of adversary jurisprudence; without it, the entire fact-finding process could be made a nullity, frustrating effective judicial review. (25)

      The APA offers a much less precise definition of the record required for an informal rulemaking. (26) This is possibly because at the time of the APA's enactment in 1946, it was widely accepted that decisions falling outside of the "formal" realm addressed mere "generalized public interest[s]" of which the agency was the "sole protector," and to which a private citizen would not likely have standing to address in a court. (27) Thus, there was rarely a need for judicial review of informal agency actions. (While the APA does grant a "right of review" to certain parties, (28) the existence of such a fight does not ensure that judicial review will be available in all instances.) (29) However, over time, standing doctrine evolved so that private citizens were permitted to challenge informal agency rulemakings; (30) the Supreme Court's decision in Ass'n of Data Processing Service Organizations, Inc. v. Camp (31) made clear that a person whose alleged injury arguably falls within the zone of interests protected by the statute at issue would have standing to sue the agency. (32)

      What, then, is the source and function of the record rule as applied to informal agency actions? It comes not. from the text of the APA, but rather from a line of Supreme Court cases, beginning with the seminal and enigmatic Overton Park. (33) In that case, the Court drew upon the APA's requirements for formal proceedings to require that judicial review of an informal adjudication be based solely upon an administrative record. (34) The Court stated that judicial review of the Secretary of Transportation's decision to fund the construction of a highway through a public park must be "based on the full administrative record that was before the Secretary at the time he made his decision." (35) The Court rejected the plaintiffs' contention that de novo review of the Secretary's actions was appropriate, instead choosing to adopt a more limited basis for review. (36) The Court went on to state its perplexing position on the standard of review: "[T]he generally applicable standards of [section] 706 require the reviewing court to engage in a substantial inquiry. Certainly, the Secretary's decision is entitled to a presumption of regularity. But that presumption is not to shield his action from a thorough, probing, in-depth review." (37) Implicitly, at least, the Court recognized that without an administrative record, there would be no basis upon which to measure the legality of the Secretary's decision, no subject upon which the court could turn its "probing, in-depth review." Indeed, as the Court explains its understanding of arbitrary and capricious review under section 706(2)(A)--"[t]o make this finding the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment" (38)--it is hard to imagine such review without at least a complete...