Improving the Affirmative Disclosure of Agency Legal Materials

Authors

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

Publication Date

Winter 2024

Journal

Michigan Journal of Environmental & Administrative Law

Abstract

It is axiomatic that in a democratic society the law must be broadly accessible. Administrative agencies produce a plethora of materials imposing legal obligations on commercial or individual actors in the private sector. Other materials bind the agencies themselves in ways that affect the rights or interests of private parties. Still other materials provide the public with information about how agencies interpret and apply the statutes and rules they administer, or how agencies seek to deploy their discretion or take other actions that can affect private individuals or organizations. This Article focuses on improving the public availability of all of these agency legal materials. It is premised on the principle that all legal material that agencies are obligated to disclose upon request by a member of the public should be affirmatively made accessible to the public on agency websites.

In Part I, we lay out our broad objective, which is to ensure the public has ready access to legal materials that are important for the public to know, while recognizing that a limited set of legal materials will be subject to exemption from disclosure for countervailing reasons requiring secrecy. In Part II, we delve into an analysis of the current state of disclosure requirements and how they apply to each type of agency legal material that we address in this Article. We identify opportunities to clarify, improve, or strengthen the law, and argue that all nonexempt records that constitute agency legal materials should be affirmatively disclosed, rather than subject only to reactive disclosure—that is, disclosure in response to a request. Part III goes beyond the question of which agency materials constitute legal materials and should be made affirmatively available. It tackles the question of how agencies should make those materials available and what mechanisms will be available to enforce these disclosure requirements. Part IV summarizes our recommendations for legislative actions to ensure effective and comprehensive public access to agency legal materials.

Public availability of agency legal materials must be comprehensive and real. In the digital era, it is no longer acceptable for the full suite of agency legal materials not to be accessible to the public online. And mere online accessibility is also insufficient. Members of the public must be realistically able to locate agency legal materials and effectively use them.

Volume

13

First Page

342

Last Page

521

Publisher

University of Michigan Law School

Keywords

Administrative law, government regulation, rulemaking, public records, disclosure, transparency, availability, accountability, affirmative disclosure, Freedom of Information Act, FOIA

Disciplines

Administrative Law | Intellectual Property Law | Law | Law and Society | Legislation

Recommended Citation

Bernard W. Bell, Cary Coglianese, Michael E. Herz, Margaret B. Kwoka & Orly Lobel, Improving the Affirmative Disclosure of Agency Legal Materials, 13 Mich. J. Envtl. & Admin. L. 342 (2024).
https://larc.cardozo.yu.edu/faculty-articles/924