Enhancing Public Access to Agency Law

Authors

Bernard Bell, Rutgers Law School
Cary Coglianese, University of Pennsylvania Carey Law School
Michael Herz, Benjamin N. Cardozo School of LawFollow
Margaret Kwoka, Ohio State University Moritz College of Law
Orly Lobel, University of San Diego School of Law

Publication Date

4-20-2024

Journal

Harvard Journal on Legislation Online

Abstract

A just, democratic society governed by the rule of law requires that the law be available, not hidden. This principle extends to legal materials produced by administrative agencies, all of which should be made widely accessible to the public. Federal agencies in the United States do disclose online many legal documents—sometimes voluntarily, sometimes in compliance with statutory requirements. But the scope and consistency of these disclosures leaves considerable room for improvement. After conducting a year-long study for the Administrative Conference of the United States, we identified seventeen possible statutory amendments that would improve proactive online disclosure of agency legal materials. Although detailed and sometimes technical, these recommendations can be encapsulated in one simple, succinct principle: All legal materials that agencies are obligated to disclose upon request under the Freedom of Information Act should be affirmatively made accessible to the public on agency websites.

Our specific recommendations fall into three main categories: clarification and expansion of the types of legal materials that agencies must disclose affirmatively; specification of the methods of disclosure that will ensure ready accessibility to the public; and establishment of mechanisms that will help ensure agency compliance with these affirmative disclosure requirements. If a democratic government is to be truly transparent, then all its legal materials should be easily available to the public. Congress should take the steps needed to ensure that administrative agencies more consistently and affirmatively disclose all their legal materials in a manner accessible to all.

Volume

61

First Page

51

Last Page

57

Publisher

Harvard Law School

Keywords

Administrative law, government regulation, legal materials, administrative agencies, rulemaking, disclosure, transparency, legislative reforms, accountability, affirmative disclosure, Freedom of Information Act, FOIA

Disciplines

Administrative Law | Constitutional Law | Intellectual Property Law | Law | Legislation

Recommended Citation

Bernard Bell, Cary Coglianese, Michael Herz, Margaret Kwoka & Orly Lobel, Enhancing Public Access to Agency Law, 61 Harv. J. on Legis. Online 51 (2024).
https://larc.cardozo.yu.edu/faculty-articles/828