The 2008 amendments to the APA: the Open Government Act.

AuthorSellers, Lawrence E.
PositionAdministrative Procedure Act

"This bill promotes open government by increasing public access to information and making the Administrative Procedure Act more user-friendly."

Senator Mike Bennett, sponsor of Senate Bill 704

In 2007, the Florida Legislature approved a number of changes to Florida's Administrative Procedure Act (APA). (1) Among other things, the 2007 bill would have provided for additional restrictions on the use of unadopted rules, based largely on recommendations by the Joint Administrative Procedures Committee (JAPC). (2) The governor vetoed this measure because of concerns regarding unintended consequences, and he directed state agencies to work with the legislature "to address any concerns, recommend changes to streamline government, simplify procedures, and better serve the people of Florida." (3)

During the 2008 regular session, the legislature revised the 2007 bill to address the governor's concerns and enacted Senate Bill 704, which was signed by the governor. (4) This article provides a brief summary of some of the principal provisions in The Open Government Act (the act), as well as those changes to the 2007 bill that were designed to address issues raised by the governor's office.

Unadopted Rules

Much of the 2008 act reflects the legislature's continuing insistence that agencies adopt their policies pursuant to the rulemaking procedures in the APA. The legislature's view is based upon the primary goals of the APA; namely, to combat "phantom government" by providing notice of agency policy, encouraging public participation in the development of that policy, and ensuring legislative oversight of delegated authority. Accordingly, the bill was given the short title, "The Open Government Act," and some of the key sections in the act are designed to address concerns with unadopted rules.

Defines "Unadopted Rule." Subsection 120.52(20) is created to define unadopted rule as "an agency statement that meets the definition of the term 'rule' but has not been adopted pursuant to the [rulemaking] requirements of [F.S. [section] 120.54."

Effect of Filing a Challenge to Agency Statements Defined as Rules. The legislative requirement for agency rulemaking in F.S. [section] 120.54(1) requires that agency statements meeting the definition of a rule be adopted as soon as practicable and feasible. Section 120.56(4) establishes a procedure for challenging agency statements defined as rules. If the administrative law judge enters a final order holding that all or part of an agency statement violates the rulemaking requirement, then the agency is required to immediately discontinue all reliance upon the statement or any substantially similar statement as a basis for agency action. (5)

Agencies typically have responded to such challenges by initiating rulemaking to adopt the challenged statement because this generally results in a stay of the challenge and may ultimately moot it. (6) In such cases, the agency could continue to rely upon the challenged statement if the agency demonstrated--"proved up"--that the unadopted rule was not an invalid exercise of delegated legislative authority and that the rule was not being applied without due notice.

The 2007 bill would have made significant changes to these provisions. In particular, it provided that upon the filing of a petition for administrative determination that an agency statement violates the rulemaking requirement, the agency must immediately discontinue all reliance upon the statement or any substantially similar statement as a basis for agency action until any of the following occurs: 1) the proceeding is dismissed; 2) the statement is adopted and becomes effective as a rule; 3) a final order is issued that contains a determination that the petitioner failed to prove the statement constitutes a rule; or (4) a final order is issued that contains a determination that rulemaking is not feasible or practicable.

This feature of the 2007 bill proved to be the most controversial and was the basis of the governor specifically mentioning it--and only it--in his veto message, stating that "such a provision amounts to an injunction against the agency in the absence of any allegation of harm by the challenger and halts enforcement or implementation of laws." (7) As a result, this provision was deleted from the 2008 bill. However, as noted below, the act amends F.S. [section] 120.57(1)(e) to provide that effective January 1, 2009, an agency or administrative law judge generally may not base agency action that determines the substantial interest of a party on an unadopted rule.

Agencies May Not Rely on Unadopted Rules. As explained above, the APA currently allows an agency to rely upon a challenged unadopted statement if the agency is proceeding expeditiously and in good faith to adopt rules that address the challenged unadopted statement and the agency "proves up" the unadopted statement in accordance with F.S. [section] 120.57 (1)(e). However, the act amends F.S. [section] 120.57(1)(e) to expressly provide that, effective January 1, 2009, an agency or an administrative law judge may not base agency action that determines the substantial interests of a party on an unadopted rule.

Agencies May Apply Adopted Rules to Facts. Notably, this new requirement expressly does not preclude application of adopted rules and applicable provisions of law to the facts. This provision appears to be consistent with the court's ruling in The Environmental Trust v. State, Dept. of Envtl. Protection, 714 So. 2d 493, 498 (Fla. 1st DCA 1998), where a majority of the court held that "[a]n agency statement explaining how an existing rule of general applicability will be applied in a particular set of facts is not itself a rule." (e.s.) The scope of this exception remains to be determined, but it does not appear that an agency may apply a general statement that "does not derive directly or indirectly from" a properly adopted rule or applicable provision of law (8) or apply its interpretation of the rationale of adopted rules to circumstances not contemplated by the agency when it adopted the rules. (9)

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