Administrative Conference of the United States
ADJUDICATION MATERIALS ON AGENCY WEBSITES

Final Report: April 10, 2017

Daniel J. Sheffner
Attorney Advisor
Administrative Conference of the United States

This report was prepared for the consideration of the Administrative Conference of the United States. The opinions, views and
recommendations expressed are those of the author and do not necessarily reflect those of the members of the Conference or its
committees, except where formal recommendations of the Conference are cited.

April 10, 2017
ACKNOWLEDGMENTS
The author would like to thank Amber Williams, Cheryl Blake, Jennifer Nou, and Reeve Bull for
their suggestions and advice. The author would also like to thank the following Administrative
Conference law clerks, legal fellows, and interns for their invaluable research assistance in
connection with this project: Dan Bever, Chris Generous, Megan Gibson, Jud Kempson, Liz
Leman, and Brian Park.

i

April 10, 2017
TABLE OF CONTENTS
Introduction .................................................................................................................................. 1
I.

Background ......................................................................................................................... 2
A.
Federal Administrative Adjudication and Electronic Access to Adjudication
Materials ................................................................................................................................. 2
B.

II.

Laws and Policies Relevant to the Online Disclosure of Adjudication Materials........ 5
1.

Freedom of Information Act ..................................................................................... 5

2.

Federal Records Act .................................................................................................. 8

3.

Paperwork Reduction Act ......................................................................................... 9

4.

E-Government Act of 2002 ..................................................................................... 10

5.

Open Government Memorandum ........................................................................... 11

Survey ............................................................................................................................... 11

III. Analysis............................................................................................................................. 17
A.

Navigability ................................................................................................................ 19
1.

Search Engine ......................................................................................................... 19

2.

Site Map or Index.................................................................................................... 20

3.

Adjudication Sections ............................................................................................. 21

B.

Disclosure Practices .................................................................................................... 23
1.

General Disclosure Practices .................................................................................. 23

2.

Interviews ................................................................................................................ 27

IV. Case Studies ...................................................................................................................... 29
A.

Federal Trade Commission ......................................................................................... 29
1.

Adjudication Overview ........................................................................................... 29

2.

Online Dissemination of Adjudication Materials ................................................... 30

B.

Federal Mine Safety & Health Review Commission ................................................. 33
1.

Adjudication Overview ........................................................................................... 33

2.

Online Dissemination of Adjudication Materials ................................................... 34

C.

V.

Social Security Administration ................................................................................... 36
1.

Adjudication Overview ........................................................................................... 36

2.

Online Dissemination of Adjudication Materials ................................................... 36

Recommendations ............................................................................................................. 40

Appendix .................................................................................................................................. A-1

ii

INTRODUCTION
This report examines the dissemination on agency websites of decisions and supporting
materials issued and filed in federal adjudicative proceedings. In contrast to notice-and-comment
rulemaking, which is supported by a fully digitized platform that allows members of the public to
post comments to proposed rules and view materials contained in rulemaking dockets,1 there exists
no single, comprehensive online clearinghouse for the public hosting of adjudication decisions and
supporting materials. Instead, to the extent that a particular adjudication record is digitally
available, it is likely to be found on the relevant agency’s website.
In my personal experience searching for adjudication materials on agency websites, as well
as in the experiences of several of my colleagues on the Administrative Conference staff, agency
websites have varied considerably in terms of their general navigability and the
comprehensiveness of their collections of adjudication materials. In order to form a clearer picture
of agency practices, I surveyed the websites of 24 agencies that engage in adjudication and
assessed the degree to which each maintained accessible, comprehensive collections of
adjudication materials. From this examination, as well as from telephone and e-mail conversations
with personnel from three agencies that maintain comprehensive or near-comprehensive
collections of adjudication materials, and case studies of three representative websites, I
formulated recommendations to agencies for improving the availability and accessibility of
adjudication materials on their websites.
The report proceeds as follows. Part I provides an overview of federal administrative
adjudication and the laws and policies relevant to the online disclosure of adjudication materials.
Part II discusses the 24-website survey and presents its results. Part III analyzes the survey’s
findings, dividing the analysis into two sections. The first section discusses the degree of
accessibility of adjudication materials on agency websites by assessing the general ease of
navigating to adjudication materials on the surveyed websites. The second section discusses the
general disclosure practices of agency websites. Part III also relays key points derived from
telephone and e-mail discussions with personnel from the Federal Maritime Commission,
Consumer Product Safety Commission, and National Labor Relations Board. These three agencies
maintain comprehensive or near-comprehensive collections of adjudication decisions and
supporting materials on their websites. In speaking with personnel familiar with these agencies’
online disclosure practices, I sought to determine whether agencies that do not maintain as robust
online adjudication sections could possibly replicate the aforementioned agencies’ successes.
Part IV presents brief case studies of the Federal Trade Commission, Federal Mine Safety
& Health Review Commission, and Social Security Administration’s websites. These websites,
each of which sits on a different point on the continuum of comprehensiveness and navigability
that was revealed during this study, are helpful in understanding the general range of agency
practices. Lastly, Part V offers recommendations for agencies to increase the accessibility of

1

See REGULATIONS.GOV (last visited Jan. 24, 2017), https://www.regulations.gov/. Regulations.gov is discussed in
Part I.A, infra.

April 10, 2017
adjudication materials on their websites and maintain more comprehensive collections of
adjudication materials.
I.

BACKGROUND

A. Federal Administrative Adjudication and Electronic Access to Adjudication Materials
Federal administrative adjudication broadly consists of two types: proceedings conducted
pursuant to the Administrative Procedure Act (APA),2 and the residuum of adjudicative
proceedings subject to the procedural requirements of other statutes or sources of law. 3 If an
agency’s organic statute requires a hearing “on the record after opportunity for an agency
hearing,”4 then the APA’s formal hearing provisions5 apply.6 APA hearings are trial-type,
evidentiary hearings over which impartial adjudicators—generally administrative law judges
(ALJs)—preside.7 Parties may submit documentary evidence or live testimony and conduct crossexamination.8 Following the hearing, the adjudicator issues a decision in the form of “a statement
of . . . findings and conclusions” akin to a judicial opinion.9
Non-APA adjudications encompass all adjudicatory proceedings not governed by the
APA’s hearing provisions. External sources of law, generally an agency’s organic statute,
determine the procedural requirements of non-APA adjudicatory proceedings, subject to certain
baseline requirements imposed by 5 U.S.C. §§ 555 and 558 and due process. 10 Non-APA
adjudication schemes vary substantially, ranging from “semi-formal”11 proceedings that, like APA
2

5 U.S.C. § 551 et seq.
See AMERICAN BAR ASSOCIATION, A BLACK LETTER STATEMENT OF FEDERAL ADMINISTRATIVE LAW 18-19 (2d ed.
2013). APA and non-APA adjudications are commonly referred to as “formal” and “informal” adjudications,
respectively.
4
5 U.S.C. § 554(a).
5
Id. §§ 554, 556, 557.
6
U.S. v. Florida E. C. R. Co., 410 U.S. 224 (1973). An agency’s governing statute may also explicitly designate
proceedings as APA adjudications. If a statute is ambiguous, the agency’s reasonable interpretation governs. See
Dominion Energy Brayton Point, LLC v. Johnson, 443 F.3d 12, 18-19 (1st Cir. 2006); see also Office of the Chairman,
Admin. Conf. of the U.S., Equal Employment Opportunity Commission: Evaluating the Status and Placement of
Adjudicators in the Federal Sector Hearing Program 13 n.82 (March 31, 2014) (noting that “courts generally defer to
an agency’s interpretation as to the application of the APA’s formal adjudication provisions.”) (citing Dominion, 443
F.3d 12).
7
The APA refers to adjudicators who preside over APA hearings as “presiding employees.” 5 U.S.C. § 556(b). The
presiding employee could be “the agency,” “one or more members of the body which comprises the agency,” or “one
or more [ALJs] appointed under section 3105 of this title.” Id. § 556(b)(1)–(3).
8
Id. § 556(d).
9
Id. § 557(c)(3)(A).
10
Section 555 authorizes, among other things, representation by counsel and the acquisition of hearing transcripts. Id.
§ 555. Section 558 sets out certain requirements applicable to licensing proceedings, and requires that sanctions and
orders be legally authorized. Id. § 558. All adjudicatory proceedings must comply with procedural due process. See
Mathews v. Eldridge, 424 U.S. 319 (1976).
11
See Alan B. Morrison, Administrative Agencies Are Just Like Legislatures and Courts–Except When They’re Not,
59 ADMIN. L. REV. 79, 99 (2007) (referring to non-APA adjudications governed by “formal” procedural requirements
as “semi-formal” proceedings). Michael Asimow designates non-APA proceedings subject to evidentiary hearing
requirements as “Type B” adjudications to more clearly differentiate them from APA hearings (“Type A”) and
informal proceedings that do not require evidentiary hearings (“Type C”). See Michael Asimow, Evidentiary Hearings
Outside the Administrative Procedure Act 1 (Nov. 10, 2016) (report to the Admin. Conf. of the U.S.) [hereinafter
Asimow, Evidentiary Hearings].
3

2

April 10, 2017
hearings, are conducted pursuant to procedurally robust evidentiary procedures, to those, like tariff
classification rulings, that are non-adversarial and procedurally bare.12 These types of hearings
are presided over by many different types of adjudicators, some of whom are called “administrative
judges” (AJs).
Agency adjudications affect an enormous number of individuals and businesses engaged
in a range of regulated activities or dependent on any of the several government benefits programs.
The many orders, pleadings, motions, briefs, petitions, discovery materials, and other records
generated by agencies and parties involved in formal and semi-formal adjudications bespeak not
only the proceedings’ procedural complexities and sophistication, but also the parties’
acknowledgment of their consequential natures. Whether, for example, an individual qualifies for
disability benefits, companies holding significant shares of a market are prohibited from merging,
or a business is fined for violating environmental regulations profoundly affects the parties
involved and third parties not subject to the proceedings.
Given the importance of federal administrative adjudication, the materials generated
throughout the course of any given adjudicatory proceeding—the aforementioned orders,
pleadings, briefs, and other adjudication records—take on special significance. Insofar as
adjudicative proceedings involve the application of federal power by unelected officials in the
disposition of disputes between the government and private parties, or among private parties, the
records associated with such proceedings are of immense public importance. On a more practical
level, administrative adjudication documents can serve as ready-made models for private parties
(especially those who are self-represented)13 in drafting their own materials, and may provide
insight into the laws and procedures governing proceedings.
The rapid growth of information technologies in the 1990s ushered in a new epoch in the
history of government transparency initiatives.14 As if overnight, the Internet opened up seemingly
limitless opportunities for the federal government to acquire and disseminate information on a
mass scale.15 Although the government has generally been successful in utilizing the Internet to
increase public access to important government information, adjudication materials have remained
comparatively unaffected by such initiatives.16 For instance, the federal judiciary has arguably
become the most transparent body of courts in the world due to its Public Access to Court
Michael Asimow, The Spreading Umbrella: Extending the APA’s Adjudication Provisions to All Evidentiary
Hearings Required by Statute, 56 ADMIN. L. REV. 1003, 1006 (2004).
13
For a recent study of self-represented parties in adjudicative proceedings, see Connie Vogelmann, Self-Represented
Parties in Administrative Hearings (Oct. 28, 2016) (report to the Admin. Conf. of the U.S.). The report undergirded
the Administrative Conference’s recent recommendation of the same name, Recommendation 2016-6, SelfRepresented Parties in Administrative Proceedings, 81 Fed. Reg. 94,319 (Dec. 23, 2016).
14
Jennifer Shkabatur, Transparency With(out) Accountability: Open Government in the United States, 31 YALE L. &
POL’Y REV. 79, 91 (2012).
15
See DARRELL M. WEST, DIGITAL GOVERNMENT 3 (2005) (noting that agencies soon realized that “[i]nformation
and services could be put online and made available to a wide variety of people.”); Shkabatur, supra note 14, at 91
(remarking that “[s]cholars have celebrated the potential of the Internet to open new channels of communication
between citizens and the government, overcome agencies’ resistance to exposure, and begin a new chapter in the long
story of regulatory transparency and public accountability.”).
16
See Michael Herz, Law Lags Behind: FOIA and Affirmative Disclosure of Information, 7 CARDOZO PUB. L. POL’Y
& ETHICS J. 577, 595-96 (2009).
12

3

April 10, 2017
Electronic Records (PACER) system.17 PACER is an online database that provides access to PDF
copies of most court records filed in the federal appellate, district, and bankruptcy courts
nationwide. Whereas access to court documents once required an individual to physically visit the
courthouse or place an order by mail, records may now be viewed online from a single source at
the price of ten cents per page (but not to exceed $3.00 for a single record). 18 There exists no
single, comprehensive hosting (and docketing) platform, however, for administrative adjudication
materials.
A government initiative led by the Environmental Protection Agency and Office of
Management & Budget (OMB) did conceive of an online clearinghouse that would provide public
access to important administrative content, including adjudication materials.19 Pursuant to the EGovernment Act of 2002,20 in 2003, the cross-agency eRulemaking Initiative launched
Regulations.gov, a website dedicated to providing public access to regulatory materials and
increasing public participation in the rulemaking process.21 The website purports to provide access
to “adjudications”;22 however, in truth only a small number of adjudicatory materials is available
on the site.23 Regulations.gov’s true utility is as a medium for public engagement in the informal
rulemaking process.
In the absence of a comprehensive, government-wide hosting platform, individuals must
visit federal agencies’ websites to electronically access adjudication materials. Agency websites
contain a host of information about individual agencies. As well as providing information on
agencies’ operations and activities, agency websites display many of the substantive legal
documents agencies generate in furtherance of their lawmaking responsibilities, including the
binding orders and, in some cases, supporting adjudication documents produced during the course
See Lynn M. LoPucki, Court-System Transparency, 94 IOWA L. REV. 481, 484 (2009) (“This Article takes as its
starting point the current state of the world’s most transparent court system–the United States Courts as accessible
through [PACER].”). But see Nat’l Veterans Legal Servs. Program v. United States, No. 16-745 (D. D.C. Jan. 24,
2017) (order granting motion for class certification in action against federal government alleging excessively high
PACER fees).
18
LoPucki, supra note 17, at 486; see Electronic Public Access Fee Schedule, PUBLIC ACCESS TO COURT ELECTRONIC
RECORDS (Dec. 1, 2013), https://www.pacer.gov/documents/epa_feesched.pdf.
19
The eRulemaking Initiative, REGULATIONS.GOV (last visited Nov. 3, 2016), https:// www. regulations.gov/
aboutProgram.
20
Pub. L. No. 107-347, 116 Stat. 2899 (codified in scattered sections of 44 U.S.C.).
21
A complementary site, FDMS.gov, allows agencies to manage the individual dockets made available on
Regulations.gov. See FDMS.GOV (last visited Nov. 3, 2016), https://www.fdms.gov/fdms/login.do. “FDMS” stands
for Federal Docket Management System, the management system used by both Regulations.gov and FDMS.gov.
22
REGULATIONS.GOV (last visited Nov. 3, 2016), https://www.regulations.gov/.
23
Most of the adjudicatory materials available on Regulations.gov are from the adjudication dockets of the Federal
Motor Carrier Safety Administration. Several agencies were apparently opposed to moving their adjudication dockets
to the FDMS system at its inception. See COMM. ON THE STATUS AND FUTURE OF FED. E-RULEMAKING, ACHIEVING
THE POTENTIAL: THE FUTURE OF FEDERAL E-RULEMAKING, REPORT TO CONGRESS AND THE PRESIDENT, at 13 & n.15
(2008). This may be because the website was not actually designed with adjudication in mind. One agency official
informed me that his agency frequently encounters processing delays and complications due to file-size limitations
that are incompatible with the size of documents filed in his agency’s enforcement proceedings. Email of Steve
Farbman, Adjudications Counsel, Fed. Motor Carrier Safety Admin., Dept. of Transp., to Daniel Sheffner, Att’y
Advisor, Admin. Conf. of the U.S. (Jan. 17, 2017, 10:47 a.m. EST) (on file with author). The official also noted that
the website offers features that are irrelevant in the adjudicative context, such as links for posting comments. Id.
17

4

April 10, 2017
of adjudicative proceedings. Some agencies, such as the Environmental Protection Agency and
the Federal Trade Commission, host relatively comprehensive adjudication dockets on their
websites. Not all agency websites, however, are as robust. Many agency websites disclose only
a limited number or type of adjudicatory materials, thus preventing access by citizens to certain
government materials of public importance.
B. Laws and Policies Relevant to the Online Disclosure of Adjudication Materials
While the federal government has attempted to take advantage of advancements made in
information technology since the Clinton Administration, only one statute, the Freedom of
Information Act (FOIA),24 imposes an explicit obligation on agencies to disclose certain
adjudicatory materials online. On the other hand, several measures, such as the Federal Records
Act (FRA),25 Paperwork Reduction Act (PRA),26 OMB Circular A-130, and the Obama
Administration’s open government policies, potentially encourage broader electronic
dissemination of adjudicatory materials than is required by FOIA, although they fall short of
actually or effectively mandating such disclosure.
The following is a brief overview of statutes and policies that are relevant to agencies’
obligations to post adjudicatory materials on their websites, beginning with FOIA.
1. Freedom of Information Act
Section 3 of the original 1946 APA required that federal agencies “publish or . . . make
available to public inspection all final opinions or orders in the adjudication of cases.”27 While
section 3 was intended to “take the mystery out of administrative procedure”28 by affording public
access to significant agency materials,29 the exploitation of the provision’s capacious exceptions
by agency officials ultimately rendered the provision a withholding, rather than disclosure
statute.30 FOIA, passed in 1966 by a Congress concerned with the development of “secret
[agency] law,”31 significantly amended section 3 by cabining its exceptions and broadening the
types of materials subject to dissemination. Under the new disclosure law, codified at 5 U.S.C. §
552, final adjudicatory decisions, which it clarified as including concurring and dissenting
opinions,32 were required to be preserved in public “reading rooms” (a non-statutory term).33
Agencies were prohibited from relying on or using as precedent final decisions that were not

24

Pub. L. No. 89-487, 80 Stat. 250 (1966) (codified as amended in 5 U.S.C. § 552).
Pub. L. No. 81-754, 64 Stat. 578 (1950) (codified as amended in 44 U.S.C. § 3101 et seq.).
26
Pub. L. No. 96-511, 94 Stat. 2812 (1980) (codified as amended in 44 U.S.C. § 3501 et seq.).
27
5 U.S.C. § 1002(b) (amended by Pub. L. No. 89-487, 80 Stat. 250 (1966)). Section 3 also mandated publication in
the Federal Register of certain materials, including substantive agency rules and organizational and operational
information, as well as the disclosure, subject to exception, of “matters of official record.” Id. § 1002(a), (c).
28
S. REP. No. 79-752, at 198 (1945).
29
U.S. DEP’T OF JUSTICE, ATTORNEY GENERAL’S MANUAL ON THE ADMINISTRATIVE PROCEDURE ACT 17 (1947).
30
S. REP. No. 89-813, at 5 (1965).
31
NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 153 (1975) (FOIA’s affirmative disclosure provisions “represent[]
a strong congressional aversion to "secret [agency] law") (quoting Kenneth Culp Davis, The Information Act: A
Preliminary Analysis, 34 U. CHI. L. REV. 761, 797 (1967)).
32
5 U.S.C. § 552(a)(2)(A).
33
Id. § 552(a)(2); see Herz, supra note 16, at 586.
25

5

April 10, 2017
indexed and made available in reading rooms, unless they were promptly published and copies
were offered for sale.34
By the mid-1990s, the Internet had become an increasingly sophisticated and important
medium of communication. FOIA, whose passage preceded the advent of the Internet, had not
kept pace with the technological advancements of the following three decades. Acknowledging
that the disclosure law was in need of modernization, Congress passed and President Clinton
signed into law the Electronic Freedom of Information Act Amendments of 1996 (EFOIA).35
Pursuant to EFOIA, final adjudicatory opinions and orders generated on or after November 1,
1996, must be made available “by electronic means”36—that is, online.37 FOIA’s original brick
and mortar reading rooms are located in Washington, D.C. Access to final agency opinions and
orders prior to EFOIA’s enactment, therefore, had necessitated not only some level of
sophistication, but also, for most individuals, a substantial investment of time and money in the
form of out-of-town travel.38 By requiring that all subsequently issued final decisions be posted
on agency websites (i.e., “electronic reading rooms”), EFOIA significantly eased citizen access to
such materials.
While FOIA, after the 1996 amendments, obligates agencies to affirmatively disseminate
certain adjudicatory materials online, the statute is clearly limited in scope. By its terms, the
statute’s proactive disclosure provision only applies to opinions and orders. FOIA does not require
disclosure of the pleadings, motions, briefs, and other non-decisional materials associated with
adjudication proceedings that are potentially just as useful in shining light on “secret [agency]
law.” Further, the proactive disclosure provision does not apply to all adjudicatory decisions. Due
to the impracticability of indexing and disclosing in physical reading rooms all decisions issued
by an agency, the Attorney General originally interpreted the provision as only applying to
decisions that have “precedential effect,”39 and this remains the generally accepted standard.40
34

See 5 U.S.C. § 552(a)(2).
Pub. L. No. 104-231, 110 Stat. 3048 (codified at 5 U.S.C. § 552(a)); see S. REP. No. 104-272, at 5 (1996).
36
5 U.S.C. § 552(a)(2).
37
See U.S. Dep’t of Justice, FOIA Update: Congress Enacts FOIA Amendments, Vol. XVII, No. 4. (Jan. 1, 1996);
U.S. DEP’T OF JUSTICE, OFFICE OF INFORMATION POLICY, GUIDE TO THE FREEDOM OF INFORMATION ACT, PROACTIVE
DISCLOSURES 10 (2009 ed.) [hereinafter PROACTIVE DISCLOSURES]. Indexes of such decisions must also be made
electronically available. This can be achieved by providing a link to each decision on an agency’s website. Id. at 22.
38
Herz, supra note 16, at 586.
39
U.S. Dep’t of Justice, Attorney General’s Memorandum on the Public Information Section of the Administrative
Procedure Act, at 15 (Aug. 17, 1967).
40
See PROACTIVE DISCLOSURES, supra note 37, at 16 (Final opinions and orders, and the other materials required to
be disclosed under FOIA’s affirmative disclosure provisions, “that have no precedential value and do not constitute
the working law of the agency are not required to be made available under [that provision] of [FOIA].”); see also
Sears, Roebuck, 421 U.S. at 153-54 (1975) (Section 552(a)(2) “represents an affirmative congressional purpose to
require disclosure of documents which have ‘the force and effect of law.’”) (citing H. REP. 1497, 89th Cong. 2d sess.
(May 9, 1966), at 7); Am. Immigration Lawyers Ass’n v. Exec. Office for Immigration Review, 830 F.3d 667, 679
(D.C. Cir. 2016) (holding that complaint resolution decisions about individual immigration judges are not subject to
FOIA’s affirmative disclosure requirement because the decisions “set no precedent, have no binding force on the
agency in later decisions, and indeed have no effect on anyone except the individual immigration judge who is the
subject of the particular complaint.”); Skelton v. U.S. Postal Serv., 678 F.2d 35, 41 (5th Cir. 1982) (Section 552(a)(2)
“was designed to help the citizen find agency statements ‘having precedential significance’ when he becomes involved
in ‘a controversy with an agency.’”) (quoting H. REP. 1497, 89th Cong. 2d sess. (May 9, 1966), at 8); Tereshchuk v.
35

6

April 10, 2017
Whether a decision is precedential is ultimately up to the agency; only decisions that an agency
considers binding or that it preserves for research and general reference are generally considered
as such.41 FOIA, therefore, requires the disclosure of only a narrow subset of materials.
Acknowledging FOIA’s limited scope, on his first full day in office in 2009, former
President Obama urged agencies to develop disclosure practices that expand on the statute’s basic
requirements. In a memorandum to agency heads (FOIA Memorandum), President Obama
expressed his desire that the disclosure law “be administered with a clear presumption: In the face
of doubt, openness prevails.”42 While the FOIA Memorandum largely concerned agency policies
with respect to FOIA document requests, President Obama underscored that “the presumption of
disclosure also means that agencies should take affirmative steps to make information public” and
“use modern technology to inform citizens about what is known and done by their Government.”43
With the passage of the recently enacted FOIA Improvement Act of 2016,44 Congress
integrated President Obama’s disclosure policy into the text of FOIA. Specifically, the new Act
modified FOIA’s affirmative disclosure provision. Whereas before the provision’s opening
language required that final opinions and orders be “ma[de] available for public inspection and
copying,” pursuant to the 2016 Act agencies must now make such materials available “for public
inspection in an electronic format.”45 The Act imposes the same “electronic format” requirement
on the public indexes agencies must maintain.46 This new language appears to indicate that final
opinions and orders issued before November 1, 1996, are required to be disclosed online.
Reprinted below is the current text of FOIA’s affirmative disclosure provision as concerns
the dissemination of adjudicatory decisions (5 U.S.C. § 552(a)(2)(A)). The 2016 Act additions are
represented in italics.

Bureau of Prisons, 67 F.Supp. 3d 441, 456 (D. D.C. 2014) (“In determining whether Section 552(a)(2) applies, this
Circuit . . . . looks to whether the records at issue have ‘precedential significance.’ Records that have no precedential
value and do not constitute working law of the agency are not required to be made available under this part of
[FOIA].”) (internal citations omitted). But see Nat’l Prison Project of ACLU Found., Inc. v. Sigler, 390 F.Supp. 789,
793 (D.D.C. 1975) (holding that the disclosure provision is not limited to precedential orders); U.S. GEN. ACCT. OFF.,
FREEDOM OF INFORMATION ACT: NONCOMPLIANCE WITH AFFIRMATIVE DISCLOSURE PROVISIONS 27 (1986) (opining
that § 552(a)(2)(A) mandates the disclosure of all final opinions, not simply those of precedential value).
41
Margaret Gilhooley, The Availability of Decisions and Precedents in Agency Adjudications: The Impact of the
Freedom of Information Act Publication Requirements, 3 ADMIN. L. J. 53, 62 nn.53-54, 83 (1989) (citing Irons v.
Gottschalk, 548 F.2d 992 (D.C. Cir. 1976), and Tax Analysists v. IRS, 362 F. Supp. 1298, 1306 (D.D.C. 1973)). In
Recommendation 89-8, Agency Practices and Procedures for the Indexing and Public Availability of Adjudicatory
Decisions, 54 Fed. Reg. 53,495 (Dec. 29, 1989), the Administrative Conference recommended that agencies index all
final decisions, or at least “significant” decisions that, for example, tackle emerging trends or develop policy in
unsettled areas of the law.
42
Freedom of Information Act: Memorandum for the Heads of Executive Departments and Agencies, 74 Fed. Reg.
4,683 (Jan. 26, 2009).
43
Id.; see also Attorney General Holder’s Memorandum for Heads of Executive Departments and Agencies
Concerning the Freedom of Information Act, 74 Fed. Reg. 51,879 (Oct. 8, 2009) (providing guidance on President
Obama’s FOIA policy). As of the time of this writing, President Trump has not announced his Administration’s FOIA
policy.
44
Pub. L. No. 114-185, 130 Stat. 538 (2016).
45
Id. § 2(1)(A)(i), 130 Stat. at 538.
46
Id. § 2(1)(A)(iii), 130 Stat. at 538.

7

April 10, 2017
§ 552. Public information; agency rules, opinions, orders, records, and
proceedings
(a) Each agency shall make available to the public information as follows:
....
(2) Each agency, in accordance with published rules, shall make available for public
inspection in an electronic format—
(A) final opinions, including concurring and dissenting opinions, as well as
orders, made in the adjudication of cases . . . .
* * * For [final opinions and orders] created on or after November 1, 1996, . . .
each agency shall make such records available, including by computer
telecommunications or, if computer telecommunications means have not been
established by the agency, by other electronic means . . . . Each agency shall also
maintain and make available for public inspection in an electronic format current
indexes providing identifying information for the public as to any [final opinion or
order] . . . issued . . . after July 4, 1967 . . . . A final order [or] opinion . . . may be
relied on, used, or cited as precedent by an agency against a party other than an
agency only if—
(i) it has been indexed and either made available or published as provided
by this paragraph; or
(ii) the party has actual and timely notice of the terms thereof.47
In requiring that agencies electronically disclose precedential opinions and orders, FOIA
is the only statute that specifically mandates the dissemination of adjudicatory materials on agency
websites. Other directives, however, arguably memorialize a policy in favor of the broader
disclosure of adjudication materials.
2. Federal Records Act
The 2016 FOIA Improvement Act also amended the FRA. The FRA requires that agencies
create and maintain efficient records management programs.48 The 2016 Act modified the FRA
by adding a requirement that such programs provide
procedures for identifying records of general interest or use to the public that are
appropriate for public disclosure, and for posting such records in a publicly
accessible electronic format.49
The extent to which this requirement will affect an increase in the adjudication materials
agencies disclose online is an open question. Records chosen for electronic disclosure must not
only be “of general interest or use to the public,” but also “appropriate” for disclosure. While

47

5 U.S.C. § 552(a)(2)(A); FOIA Improvement Act of 2016, Pub. L. No. 114-185, §§ 2(1)(A)(i), (ii), 130 Stat. at 538.
44 U.S.C. §§ 3101, 3102.
49
Id. § 3102(2).
48

8

April 10, 2017
adjudication materials, especially decisions, likely meet this test, the amount of discretion the new
provision leaves agencies suggests that any effect on disclosure practices will be minimal.50
3. Paperwork Reduction Act
The PRA does not mandate the electronic disclosure of adjudicatory materials, but it does
represent an attempt by Congress to promote greater electronic availability of important
government records. In an effort to “ensure that the public has timely and equitable access to
[agencies’] public information,” the statute directs agencies to “disseminat[e] public information
in an efficient, effective, and economical manner,”51 which, nowadays, means online disclosure.52
While it may seem at first blush that the PRA mandates the electronic disclosure of nearly all
administrative adjudication materials (beyond simply the “final opinions . . . [and] orders”
mandated by FOIA), such a broad interpretation is foreclosed by the term “public information” as
used in the statute. The PRA defines “public information” as “any information . . . that an agency
discloses, disseminates, or makes available to the public.”53 Thus, the PRA’s electronic
dissemination requirement only applies to materials an agency already discloses.54 If an agency
does not disclose materials in excess of FOIA’s requirements, it is not obligated to do so
electronically by the PRA.
In 1985, OMB issued Circular A-130 pursuant, in part, to its authority under the PRA.55
The circular, most recently updated in July 2016, contains a series of federal information
management directives for agencies. With respect to access to federal materials, Circular A-130
requires that agencies “provide information to the public consistent with their missions and subject
to Federal law and policy” by, in relevant part:
Publishing public information online in a manner that promotes analysis and reuse
for the widest possible range of purposes, meaning that the information is publicly
accessible, machine-readable, appropriately described, complete, and timely. 56
“Public information,” however, is defined by the circular precisely as it is defined by the PRA.
Therefore, OMB Circular A-130 does not actually obligate agencies to publish adjudicatory
materials online. But, along with the PRA, it does represent implicit government approval of the
electronic dissemination of a whole host of administrative adjudication materials beyond the final
opinions and orders authorized by FOIA.

50

See Laurence Tai, Fast Fixes for FOIA, 52 HARV. J. ON LEGIS. 455, 493 (2015) (discussing the same provision from
the Senate bill, FOIA Improvement Act of 2015, S. 337, 114th Cong., § 4 (2015)).
51
44 U.S.C. § 3506(d)(1)(C).
52
Herz, supra note 16, at 592.
53
44 U.S.C. § 3502(12).
54
Herz, supra note 16, at 592.
55
OMB circulars provide instruction and important information for federal agencies. See Circulars, OFFICE OF MGMT.
& BUDGET (last visited Nov. 8, 2016), https://www.whitehouse.gov/omb/circulars_default.
56
OMB Circular A-130, § 5.e.2.a. It also imparts on agencies the responsibility of “[c]onsidering the impact of
providing agency information and services over the Internet for individuals who do not own computers or lack Internet
access . . . .” Id. § 5.e.2.f.

9

April 10, 2017
4. E-Government Act of 2002
The E-Government Act of 2002 contains two provisions relevant to the electronic
dissemination of adjudication materials. The first, section 206, provides:
To the extent practicable as determined by the agency in consultation with the
Director [of OMB], each agency . . . shall ensure that a publicly accessible Federal
Government website includes all information about that agency required to be
published in the Federal Register under paragraphs (1) and (2) of section 552(a) of
title 5, United States Code.57
While section 206 may at first appear to require electronic disclosure of adjudication decisions
(and other (a)(2) materials), as Michael Herz has noted, the provision actually suffers from several
deficiencies that ultimately render it an empty directive.58 As a preliminary matter, the provision
is the product of poor drafting.59 Section 206 obligates agencies to disseminate online materials
that “paragraphs (1) and (2) of [5 U.S.C. §] 552(a)” require to be published in the Federal Register.
But § 552(a)(2) does not mandate publication in the Federal Register. While subparagraph (1)
contains such a requirement for certain materials (e.g., rules and significant guidance
documents),60 subparagraph (2) only mandates that final opinions, orders, and the other materials
falling under its ambit be made “available for public inspection” in electronic reading rooms.61
Therefore, Congress’s intent is not entirely clear from the face of the statute.
But even if Congress intended for section 206 to apply to the disclosure of § 552(a)(2)
materials, the section does not in fact obligate agencies to do anything. 62 First, if it does apply, it
is redundant with FOIA.63 Second, section 206 only directs agencies to disclose (a)(2) material
online “[t]o the extent practicable as determined by the agency.” Therefore, the decision to
disclose adjudicatory materials under the section, in the event it provides as such, is wholly within
the discretion of the agency.64 Lastly, it is not readily apparent that adjudicatory decisions
constitute “information about the agency.”
Section 207 of the E-Government Act also appears, upon an initial reading, to impose an
obligation on agencies to disclose adjudicatory materials online. That section requires that agency
websites provide links to, among other materials, “information made available to the public under
subsections (a)(1) and (b) of section 552 of title 5, United States Code (commonly referred to as
the ‘Freedom of Information Act’).”65 This provision as well, however, contains a drafting error

57

44 U.S.C. § 3501 (note).
See Herz, supra note 16, at 594-95.
59
See Michael B. Gerrard & Michael Herz, Harnessing Information Technology to Improve the Environmental Impact
Review Process, 12 N.Y.U. ENVTL. L. J. 18, 45 (2003).
60
5 U.S.C. § 552(a)(1).
61
Gerrard & Herz, supra note 59, at 46.
62
See id.
63
Herz, supra note 16, at 595. Although, “publicly accessible Federal Government website” is more explicit than
“electronic means.”
64
Id. at 594.
65
44 U.S.C. § 3501 (note).
58

10

April 10, 2017
that muddles its meaning.66 Section 552(b) does not “m[ake] information available”; in fact, it
actually lists the nine exemptions to FOIA’s disclosure requirements that authorize agencies to
make records—including (a)(2) materials—unavailable.67 But, even assuming Congress intended
that section 207 should apply to (a)(2) materials instead of subparagraph (b), such a requirement
is, as with section 206, redundant with FOIA.68
5. Open Government Memorandum
On the same day he signed the FOIA Memorandum, President Obama also issued the
Transparency and Open Government Memorandum.69 In that memorandum, President Obama
expressed his administration’s commitment “to creating an unprecedented level of openness in
Government” and directed agencies to “harness new technologies to put information about their
operations and decisions online and readily available to the public.”70 In response, OMB issued
the Open Government Directive.71 The Directive instructed agencies to take specific steps to
implement President Obama’s open government policy. Each agency was told—“[t]o the extent
practicable”— to “proactively use modern technology to disseminate useful information, rather
than waiting for specific requests under FOIA.” 72
The memorandum does not impose any legally enforceable obligation on agencies and is,
in fact, written in such an open-ended manner that it is unclear what precisely agencies are
expected to do to comply with its exhortations. The Trump Administration has not yet announced
its policy on transparency and open government.
***
The laws and policies discussed above represent attempts by the government to increase
public transparency through promotion of the online disclosure of important government materials.
President Obama’s FOIA and open government policies, the FRA, PRA, and OMB Circular A130 potentially encourage agencies to disclose non-precedential orders, briefs, motions,
complaints, and other adjudication materials online along with FOIA’s precedential decisions. All
indicate a desire on the part of the elected branches of government to increase access to important
information and promote greater transparency and accountability.
II.

SURVEY

Although there is no system akin to Regulations.gov or PACER for administrative
adjudication, as Part I explained, agencies are nonetheless encouraged and, indeed, in the case of
FOIA, specifically required to disclose certain adjudicatory materials online. To the extent
agencies comply with FOIA and the other laws and policies discussed above, they do so by
66

Gerrard & Herz, supra note 59, at 48.
See 5 U.S.C. § 552(b)(1)–(9); Gerrard & Herz, supra note 59, at 48.
68
Herz, supra note 16, at 595.
69
Transparency and Open Government Memorandum for the Heads of Executive Departments and Agencies, 74 Fed.
Reg. 4,685 (Jan. 26, 2009).
70
Id.
71
Office of Mgmt. & Budget, Exec. Office of the President, M-10-16, Open Government Directive (Dec. 8, 2009).
72
Id. at 2. The Directive also called for the creation of “an Open Government Webpage . . . to serve as the gateway
for agency activities related to the Open Government Directive.”
67

11

April 10, 2017
disclosing adjudication materials on their individual websites. Therefore, in order to evaluate
agencies’ compliance with baseline legal requirements and form a clearer picture of agencies’
disclosure practices, I conducted a survey of 24 agency websites and assessed whether each one
maintained accessible, comprehensive collections of adjudication materials.
The websites of the following agencies were surveyed:


Board of Veterans Appeals, Department of Veterans Affairs (BVA)



Civilian Board of Contract Appeals, General Services Administration (CBCA)



Commodity Futures Trading Commission (CFTC)



Consumer Financial Protection Bureau (CFPB)



Consumer Product Safety Commission (CPSC)



Copyright Royalty Board, Library of Congress (CRB)



Department of Housing & Urban Development (HUD)



Department of Labor (DOL)



Environmental Protection Agency (EPA)



Equal Employment Opportunity Commission (EEOC)



Federal Communications Commission (FCC)



Federal Energy Regulatory Commission (FERC)



Federal Maritime Commission (FMC)



Federal Mine Safety & Health Review Commission (FMSHRC)



Federal Trade Commission (FTC)



National Appeals Division, Department of Agriculture (NAD)



National Labor Relations Board (NLRB)



Occupational Safety & Health Review Commission (OSHRC)



Office of Medicare Hearings & Appeals, Department of Health & Human
Services (OMHA)



Pension Benefit Guaranty Corporation (PBGC)



Postal Regulatory Commission (PRC)



Securities & Exchange Commission (SEC)



Social Security Administration (SSA)
12

April 10, 2017


United States Postal Service (USPS)

The agencies were selected for a number of reasons. All engage in some form of adjudication.
Large as well as small agencies were included in the survey in order to determine whether more
personnel and resources translated to more comprehensive adjudication dockets. For similar
reasons, the survey included both agencies that engage solely or primarily in adjudication to make
law and policy (e.g., NLRB), as well as those that, in addition to adjudication, engage in extensive
amounts of rulemaking (e.g., EPA). I wanted to survey a handful of departments (HUD and DOL),
based on the belief that some individuals may venture to the main website of a department instead
of a specific agency within that particular department in search of adjudication materials, as well
as certain components of departments (BVA and OMHA) that engage in high levels of
adjudication. Lastly, I desired to include a variety of institutional “types” within the study. I
therefore selected websites maintained by executive departments and agencies, 73 independent
regulatory agencies,74 government corporations,75 independent administrations,76 and even one
legislative agency.77
Six researchers aided me in the study. All six, consisting of two research fellows, two law
clerks, and two interns, were either recent law school graduates or current law students. Each
researcher surveyed several websites and answered a series of identical research questions aimed
at eliciting the navigability and comprehensiveness of the websites examined.78 To help focus
their surveys, the researchers were instructed to use the Federal Administrative Adjudication
public database as a reference. The database, a joint project of the Administrative Conference and
Stanford Law School, charts the span of federal administrative adjudication79 by, among other
things, cataloging the various matters handled by adjudicative bodies in both APA and non-APA
adjudications.80
The research questions were divided into two general parts. Part I asked each researcher
to assess the general navigability of the websites—that is, how easy or difficult it is for a user to
navigate to, and thus access, adjudication materials. Subpart A asked whether each website
contained a search engine and a site map or index on its homepage.81 These two features were
selected due to their potential usefulness in directing users to adjudication materials. In Subpart
73

BVA, HUD, DOL, FERC, NAD, and OMHA.
CFTC, CFPB, CPSC, EEOC, FCC, FMC, FMSHRC, FTC, NLRB, OSHRC, and PRC.
75
PBGC and USPS.
76
EPA, CBCA, SEC, and SSA.
77
CRB.
78
A copy of the research questions can be found in the appendix. It should be noted that, as mentioned in footnotes
81 and 83, infra, not all of the tools and materials asked about were ultimately considered in the final analysis. The
framework of the questions was inspired by that developed by Stuart Shapiro and Cary Coglianese in their 2007 study,
First Generation E-Rulemaking: An Assessment of Regulatory Agency Websites (Univ. of Pa. Law Sch. Pub. Law &
Legal Theory Research Paper Series, Paper No. 07-15, 2007), available at http://papers.ssrn.com/abstract=980247.
79
The database, however, does not contain information about military adjudication.
80
Federal Administrative Adjudication, ADMIN. CONF. OF THE U.S. (last visited March 3, 2017),
http://acus.law.stanford.edu/
81
Subpart A also asked whether each website contained foreign language options, disability friendly features, and a
“help” function or “Frequently Asked Questions” page or pages. Data relating to the presence or absence of these
functions were ultimately not assessed.
74

13

April 10, 2017
B, the researchers were tasked with examining the adjudication sections specific to each website.
Questions included how to navigate to a website’s adjudication section from the homepage, as well
as how to search for materials within adjudication sections.82
Part II of the research questions focused on the online disclosure practices of the survey
agencies. Researchers examined whether each website contained accessible links to orders and
opinions and supporting adjudicatory materials and, if so, examples of the various types of such
documents disclosed.83 For purposes of this study, an order or opinion is any decision that was
reached by one or more federal officials presiding over an oral or written hearing. 84 While this
definition excludes documents embraced by the APA’s more expansive definition of “order,”85 it
includes not only FOIA’s “precedential” decisions, but also non-precedential and procedural
orders. Specifically, I sought to determine whether each agency included not only orders issued
by its first line adjudicators (e.g., ALJs, AJs), but also the orders and opinions issued by agency
appellate bodies (including the agency head or heads). From the answers to these questions, I
sought to gauge the level of comprehensiveness of the agencies’ online adjudication dockets. 86
After reviewing the individual surveys, I ultimately determined to chart whether each
surveyed website contained any of the following six types of resources and records: (1) a search
engine located on the homepage; (2) a site map or index accessible from the homepage; (3) an
adjudication section or sections; (4) first line adjudicators’ orders; (5) appellate orders and
opinions; and (6) supporting adjudicatory materials. These terms are defined for purposes of this
report as follows.

82

Researchers were also asked how documents were organized, what formats the documents were in (e.g., PDF, TXT,
DOC), whether any documents listed were inaccessible, and whether there was a specific “FOIA,” “open government,”
or related section that disclosed adjudicatory materials (and whether it was the same as an identified adjudication
section).
83
Questions also directed researchers to identify the types of “other” materials (e.g., press releases, case summaries)
and materials associated with appeals of agency action in federal court (including opinions) disseminated on each
website. While useful, these types of materials were ultimately not assessed as part of the study.
84
See FAQ, Federal Administrative Adjudication, ADMIN. CONF. OF THE U.S. (last visited Nov. 21, 2016),
http://acus.law.stanford.edu/content/user-guide (defining “adjudication” for the purposes of the Federal
Administrative Adjudication public database as “[1] a decision by one or more federal officials made through an
administrative process [2] to resolve a claim or dispute arising out of a federal program [3] between a private party
and the government or two or more private parties [4] based on a hearing—either oral or written—in which one or
more parties have an opportunity to introduce evidence or make arguments.”).
85
The APA defines an “order” as “the whole or a part of a final disposition . . . of an agency in a matter other than
rule making but including licensing.” 5 U.S.C. § 551(6). This definition includes everything from judicial-like orders
and opinions issued in formal and semi-formal proceedings to agency advisory letters and policy manuals. See Steven
P. Croley, Theories of Regulation: Incorporating the Administrative Process, 98 COLUM. L. REV. 1, 114-17 (1998)
(discussing informal adjudicatory orders). Because the definition adopted for this study embraces only decisions
issued in formal and semiformal adjudications, documents such as SSA acquiescence rulings, CFPB warning letters,
and PBGC opinion letters are not considered “orders” or “opinions” for the purposes of this study.
86
It is an inherent limitation of this study that there is no manageable way to determine the exact number of decisions
and supporting materials issued by each agency and, therefore, to gauge with more accuracy their compliance with
FOIA.

14

April 10, 2017


A “search engine,” unless otherwise specified, is a search engine an agency
maintains on its website’s homepage that allows users to generate results from
the entire website, not one that is specific to a particular section of the website.



A “site map” is a detailed table of contents of a website, with each “chapter” or
“subchapter” containing links to the respective sections of the website.



An “index” offers links to sections of a website organized alphabetically or
topically.



An “adjudication section” (or “adjudicatory section”) is the section of a website
containing information relevant to an agency’s adjudication functions.



“First line adjudicators’ orders” are orders issued by ALJs, AJs, or other
hearing-level adjudication officers following an evidentiary hearing. Note that
this definition does not apply to “front-line” decisions by agency staff that
constitute an initial agency decision to, for example, impose a sanction or deny
benefits where the adverse party is able to appeal that decision and participate
in a subsequent evidentiary hearing.87



“Appellate orders and opinions” are decisions issued by an appellate body
within an agency, or the agency head or heads, on appeals from the
determinations of first line adjudicators.88



Lastly, “supporting adjudication materials” (or “supporting adjudicatory
materials”) are any pleadings, briefs, motions, and other documents filed by the
parties in a proceeding.

Table 1 displays the results of the survey. Whether a resource or type of record was
identified as present on an agency’s website is represented in Table 1 with either a Y (yes it was
so identified) or N (no it was not so identified). An asterisk (*) next to an agency’s initials indicates
that the agency is a component of a larger agency (e.g., BVA is a component of the Department of
Veterans Affairs). An asterisk next to a Y in the “Search Engine” column indicates that, although
there was a search engine located on a component agency’s section of a website, the search engine
was not specific to the component section but, rather, generated results from the entire website.
Site maps and indexes were only indicated as present on a component agency’s section of a website

87

See Asimow, Evidentiary Proceedings, supra note 11, at 10.
Whether decisions were classified as first line orders or appellate orders or opinions for purposes of this report was
based on the classification of the adjudicatory hearing from which a decision was issued, as defined by the ACUSStanford database. See Types of Hearings and Appeals, Federal Administrative Adjudication, ADMIN. CONF. OF THE
U.S. (last visited Dec. 27, 2016), http://acus.law.stanford.edu/reports/types-of-hearings?type_1=hearing_level_proced
ures&&items_per_page=100&page=1. Therefore, for example, because CBCA proceedings are classified as “hearing
level proceedings” by the database, decisions issued by CBCA are considered first line adjudicators’ orders for the
purposes of this report. See GSAONPRC0002 – Hearing Level – Procedures, Federal Administrative Adjudication,
ADMIN. CONF. U.S. (last visited Dec. 27, 2016), http://acus.law.stanford.edu/hearing-level/gsaonprc0002-hearinglevel-procedures.
88

15

April 10, 2017
if the site map or index was particular to that section of the website and not, as was typical, to the
larger website more generally.
Table 1. Resources and Adjudication Materials on Select Agency Websites
Agencies & Web Addresses

Search Site
Adjudication First
Line Appellate Orders Supporting
Engine Map Section(s)
Adjudicators’ and Opinions
Adjudicatory
or
Orders
Materials
Index

BVA* www.bva.va.gov

Y

N

Y

Y

N/A

N

CBCA* www.cbca.gsa.gov

Y

N

Y

Y

N/A

N

CFPB www.consumerfinance.gov

Y

N

Y

Y

Y

Y

CFTC www.cftc.gov

Y

Y

Y

Y

Y

N

CPSC www.cpsc.gov

Y

Y

Y

Y

Y

Y

CRB* www.loc.gov/crb

Y

N

Y

Y

N/A

Y

DOL www.dol.gov
EEOC www.eeoc.gov

Y
Y

Y
Y

Y
Y

Y
N

Y
Y

Y
N89

EPA www.epa.gov
FCC www.fcc.gov

Y
Y

Y
Y

Y
Y

Y
Y

Y
Y

Y
N

FERC www.ferc.gov
FMC www.fmc.gov
FMSHRC www.fmshrc.gov
FTC www.ftc.gov
HUD www.hud.gov
NAD* www.nad.usda.gov

Y
Y
Y
Y
Y
Y

Y
Y
N
Y
Y
Y

Y
Y
Y
Y
Y
Y

Y
Y
Y
Y
Y
Y

Y
Y
Y
Y
N
Y

Y
Y
N90
Y
N
N

NLRB www.nlrb.gov
OSHRC www.oshrc.gov
OMHA*
www.hhs.gov/about/agencies/omha

Y
Y
Y*

Y
N
N

Y
Y
Y

Y
Y
N

Y
Y
N/A

Y
Y
N

PBGC www.pbgc.gov
PRC www.prc.gov
SEC www.sec.gov

Y
Y
Y

Y
Y
Y

Y
Y
Y

Y
Y
Y

N/A
Y
Y

N
Y
Y

SSA www.ssa.gov
USPS www.usps.com

Y
Y

Y
Y

Y
Y

Y
Y

Y
Y

N
N

89

There are some amicus briefs filed by EEOC in non-EEOC administrative proceedings accessible from the EEOC
website. Commission Appellate and Amicus Briefs, U.S. EQUAL EMPLOY. OPP. COMM’N (last visited Dec. 29, 2016),
https://www1.eeoc.gov/eeoc/litigation/briefs.cfm?redirected=1.
90
FMSHRC’s website does contain audio files of oral arguments. Oral Arguments, FED. MINE SAFE. & HEALTH REV.
COMM’N (last visited Dec. 20, 2016), https://www.fmshrc.gov/meetings-arguments/arguments. Oral argument
recordings, however, do not constitute supporting adjudicatory materials as defined by this report.

16

April 10, 2017
III.

ANALYSIS

The table reveals a high degree of uniformity among the surveyed websites, particularly
regarding the presence of navigation functions. The data demonstrate that all of the agencies
surveyed maintained relatively “navigable” websites. All 24 contained a search engine on their
homepage (or the component agency’s subpage). Seventeen websites contained a site map and/or
an index accessible from the homepage. In addition, all 24 websites surveyed maintained one or
more adjudication sections. This breakdown is represented in Table 2.
Table 2. Number of Agency Websites with a Search Engine on its Homepage, a Sitemap
and/or an Index Accessible from its Homepage, and an Adjudication Section or Sections
Search Engine

Sitemap or Index

24/24

17/24

Adjudication
Section(s)
24/24

Table 1 suggests a similar degree of uniformity regarding the dissemination of adjudicative
decisions. Twenty-two of the 24 websites surveyed maintained copies of orders of the agencies’
first line adjudicators. Eighteen of the 19 websites maintained by agencies with appellate systems
disclosed appellate orders and opinions. Records were available in PDF, TXT, DOC, HTML, and
other formats (but generally PDF). The research undergirding these findings suggests that
agencies are generally in compliance with 5 U.S.C. § 552(a)(2)(A). Of course, as discussed above,
because the “final opinions . . . [and] orders” of that provision have generally been interpreted to
mean only decisions agencies deem binding or which they preserve for research and general
reference, whether an agency is truly in compliance with FOIA is ultimately only known to the
agency.91 That said, the individual surveys revealed that most of the agencies that offered links to
copies of decisions maintained extensive decisional libraries that at least appeared FOIAcompliant.
Half of the agencies (12/24) provided access to supporting adjudication materials on their
websites. Whether an agency disclosed supporting adjudication materials was not dictated by such
obvious factors as its size and, presumably therefore, the amount of resources available to it.
Neither the largest nor the smallest agencies, in terms of number of personnel, whose websites
were surveyed (SSA and FMSHRC, respectively) disclosed such materials. And while, for
example, CFPB, EPA, FTC, NLRB, and SEC—all agencies employing 1,000 or more employees
each—did post links to certain supporting adjudicatory materials on their websites, so too did
CPSC (~536 employees), FMC (~122), and OSHRC (~52).92

91

See supra Part I.B.1.
For these figures, see March 2016, Employment Cubes, FedScope, U.S. OFF. PERS. MGMT. (last visited Dec. 21,
2016), https://www.fedscope.opm.gov/ibmcognos/cgi-bin/cognosisapi.dll.
92

17

April 10, 2017
Table 3. Number of Agency Websites that Maintained Copies of First Line Adjudicators’
Orders, Appellate Decisions, and Supporting Adjudication Materials
First Line
Adjudicators’ Orders

Appellate Decisions

Supporting
Adjudication
Materials

22/24

18/19

12/24

Table 1, however, only goes so far in shedding light on the disclosure practices of the
surveyed agencies. A scan of the table may understandably lead a reader to believe that agency
websites occupying rows filled with Ys or mostly Ys are the most robust of the surveyed websites.
The table, however, is misleading in this regard. Table 1 only indicates whether a website
disclosed at least one first line adjudicator’s order, appellate order or opinion, and supporting
adjudication record, respectively. Thus, for instance, while the table displays Ys in every row
corresponding with OSHRC save for whether the agency maintains a site map or index on its
homepage, OSHRC’s adjudication section was less comprehensive than that of, for example, EPA
and FTC’s websites. This is because the only supporting adjudicatory materials disclosed on
OSHRC’s website were those associated with seven cases listed on the agency’s “e-Reading
Room” page.93 OSHRC’s main adjudication section did not disclose supporting adjudication
materials.94
The table, therefore, may overstate the comprehensiveness of some websites’ adjudication
sections. This also applies to the diversity of materials agencies disclosed. While an exhaustive
examination of every type of order, opinion, and supporting adjudication record was beyond the
scope of this study, it was impossible to ignore the fact that a Y in a column for Agency A did not
necessarily mean the same thing as a Y in the same column for Agency B. For instance, Table 1
accurately indicates that FMC and PBGC both posted first line adjudicators’ orders on their
websites; however, whereas FMC posted seemingly all ALJ decisions, PBGC’s website only
disclosed decisions of its Appeals Board considered “significant or relevant to a large number of
participants.”95
This Part examines the survey’s findings. Section A discusses the search engines and site
maps and indexes located on agency websites’ homepages, as well as the websites’ adjudication
sections. Section B discusses the general practices observed with respect to the online disclosure
of adjudicatory decisions and supporting adjudicatory materials by the surveyed agencies. Both
sections discuss agency disclosure practices in some detail and may appear very abstract unless
the reader is navigating the websites under discussion at the same time she is reading. In an attempt
to illuminate the discussion and ease readers’ potential frustrations, I have included explanatory
OSHRC e-Reading Room, OCCUP. SAFETY & HEALTH REV. COMM’N (last updated Sept. 28, 2011),
http://www.oshrc.gov/foia/foia_reading_room.html.
94
Decisions, OCCUP. SAFETY & HEALTH REV. COMM’N (last visited Jan. 9, 2017),
http://www.oshrc.gov/decisions/index.html.
95
Appeals Board Decisions, PENS. BEN. GUAR. FUND (last visited Jan. 6, 2017), http://www.pbgc.gov/prac/appealsboard/appeals-decisions.html.
93

18

April 10, 2017
screenshots from agency websites in places where I do not think doing so will cause needless
distraction.
A. Navigability
1. Search Engine
While each website surveyed maintained a search engine on its homepage, not all search
engines were equally effective in locating adjudicatory materials. As a general matter, entering
common search terms into a website’s search engine, such as “adjudication,” “decision,”
“opinion,” or “order” led to a page containing an overwhelmingly long laundry list of results.
Results generally included adjudicatory materials (usually orders), but one had to use precise
search terms, such as the title or docket number of a case, to locate a particular record or docket.
Most of the websites’ search engines allowed users to filter results by date or category.
Some filters bore no relevance to adjudicatory materials and were therefore not helpful in
uncovering adjudication records. Others allowed users to narrow their searches to specific types
of adjudicatory materials and therefore made the search results more manageable to sift through.
NLRB’s search engine, for example, enabled users to filter results initially by either “Case
Documents” or “Cases.” Depending on the filter selected, one could further narrow one’s search
by document type (e.g., “Board Decisions,” “Administrative Law Judges Decisions”) or date. 96
Some other websites contained equally effective filtering options.97
Figure 1. Example of Advanced Search Options on FMSHRC’s Website98

Search engines are therefore useful for finding adjudicatory materials generally, as well as
for locating specific materials provided a user enters search terms particular to an identifiable
record. If a website has an advanced search engine, the odds of finding a particular record or type
of record are generally greater.

Search, NAT’L LAB. REL. BD. (last visited Dec. 12, 2016), https://www.nlrb.gov/search/all/decision. Users may
filter by document type and date if searching under “All.” Id. The descriptions of the websites discussed are consistent
with their statuses as of January 2017.
97
See, e.g., Search Results, FED. MINE SAFETY & HEALTH REV. COMM’N (last visited December 12, 2016)
https://search.usa.gov/search?query=decisions&submit.x=0&submit.y=0&submit=Send&affiliate=fmshrc
(filters
available include “Commission Decisions” and “ALJ Decisions”).
98
Advanced Search, FED. MINE SAFETY & HEALTH REV. COMM’N (Jan. 3, 2017),
https://search.usa.gov/search/advanced?affiliate=fmshrc&enable_highlighting=true&per_page=20&query=order.
96

19

April 10, 2017
2. Site Map or Index
Seventeen out of 24 websites contained a site map or an index (or both) either locatable
from the homepage or displayed at the bottom of the homepage (in the case of site maps only).99
Fourteen websites had a site map,100 five had an index,101 and two had both.102 The site maps and
indexes examined displayed links to the adjudication sections of agency websites in easily
searchable and logically organized formats. Websites that contained at least one of these tools
enhanced the ease of navigating to an agency’s adjudication section or sections.
Figure 2. Portion of Sitemap from NLRB’s Website103

Figure 3. Portion of “A-Z Index” from HUD’s Website104

See FED. TRADE COMM’N (last visited Dec. 17, 2016), https://www.ftc.gov/ (site map located at the bottom of the
homepage).
100
CFTC, CSPC, EEOC, FCC, FERC, FMC, FTC, HUD, NAD, NLRB, PBGC, PRC, SEC, and SSA.
101
DOL, EPA, USPS, HUD, and PBGC.
102
HUD and PBGC.
103
Site Map, NAT’L LABOR RELAT. BD. (last visited Jan. 3, 2017), https://www.nlrb.gov/sitemap.
104
HUD’s Site Index/Quick Links, U.S. DEPT. HOUS. & URBAN DEV. (last visited Jan. 3, 2017),
https://portal.hud.gov/hudportal/HUD?src=/siteindex/quicklinks.
99

20

April 10, 2017
The utility of a site map or index, however, should not be overstated. Or, rather, it should
be understood that the survey did not ultimately reveal that the absence of a site map or index on
a website’s homepage created a great obstacle to locating adjudication materials. The homepages
of BVA, CBCA, CFPB, CRB, FMSHRC, and OSHRC’s websites, for example, did not contain
site maps or indexes.105 Those agencies’ homepages, however, contained descriptively-titled links
to adjudication sections, generally on the banner, that lessened the probability that a user’s search
for adjudicatory materials would be needlessly impeded.
3. Adjudication Sections
All of the websites (24/24) contained a section or sections dedicated to adjudication.
Adjudication sections were generally easy to locate even without resort to a website’s site map or
index (assuming one or both were present on a website). Most sections were accessible by way of
a link on a website’s banner entitled “Enforcement,” “Documents and Proceedings,” “Decisions,”
or some similar appellation. Some were perhaps less intuitive from the standpoint of a non-lawyer
or law-trained individual. PBGC’s adjudication section, for example, entitled “Laws &
Regulations,” was nested under a link on the website’s banner called “Practitioners.”106 Even less
obvious from any perspective was USPS’s adjudication section, which could only be accessed
from a link on the footer of the homepage situated beneath the heading “On About.USPS.Com.”107
The locations of those websites’ adjudication sections may be appropriate, however, in light of
their respective traffic levels and the most likely types of visitors to PBGC’s “Law and
Regulations” page and USPS’s website in general.
The navigation tools offered by the websites’ adjudication sections varied, but common
themes were revealed during the survey. Many adjudication sections utilized search engines
(separate from a website’s main search engine) as primary or complementary tools for accessing
adjudication records. The only way to locate decisions on BVA’s adjudication section, for
example, was through a multi-field search engine that allowed users to search for specific words
or phrases.108 BVA, however, was unusual in this regard. Many sites employed a search engine,
oftentimes with options for filtering results by, for instance, date or topic, in conjunction with a
list of records arranged by date, docket number, name, or some other category. 109 Still others
simply listed records by date or category of proceeding without an accompanying search engine.110

105

This is perhaps most understandable as regards BVA, CBCA, and CRB, as those agencies are components of larger
entities.
106
Practitioners, PENS. BEN. GUAR. FUND (last visited Dec. 17, 2016), http://pbgc.gov/prac/.
107
About, U.S. POST. SERV. (last visited Dec. 2016), http://about.usps.com/. The USPS site was the only “dotcom”
(as opposed to “dotgov”) website surveyed.
108
The Board of Veterans’ Appeals Decision Search Results, U.S. DEP’T VET. AFFAIRS (last updated April 27, 2016),
http://www.index.va.gov/search/va/bva.jsp.
109
See Enforcement Actions, CONSUM. FINANC. PROT. BUREAU (last visited Dec. 15, 2016),
http://www.consumerfinance.gov/policy-compliance/enforcement/actions/; Cases and Proceedings, FED. TRADE
COMM’N (last visited Dec. 15, 2016), https://www.ftc.gov/enforcement/cases-proceedings; Active Cases, POST. REG.
COMM’N (last visited Dec. 17, 2016), http://www.prc.gov/dockets/active.
110
See Dispositions, U.S. COMM. FUT. TRAD. COMM’N (last visited Dec. 15, 2016),
http://www.cftc.gov/LawRegulation/Dispositions/index.htm; Administrative Sanction Decisions, U.S. DEPT. HOUS. &
URBAN DEVELOP. (last visited Dec. 15, 2016), https://portal.hud.gov/hudportal/HUD?src=/program_offices/hearings

21

April 10, 2017
Some adjudication sections grouped records by docket. For instance, clicking on the name
of a case listed on CFPB’s “Enforcement Actions” page led the user to a page containing
adjudicatory materials filed in that particular case, as well as helpful identifying information such
as the status (e.g., inactive or resolved) and category (i.e., administrative filing or federal district
court case) of the proceeding.111 This type of organizational structure is useful when navigating
an adjudication section of a website maintained by an agency with a large adjudicatory footprint,
such as NLRB. Hovering over the “Cases and Decisions” banner link on that agency’s website
displayed an array of available options for viewing or filing records, including links to Board and
ALJ decisions that, by clicking on a hyperlinked case number, enabled one to view most if not all
of the records filed and issued in that particular case.112
Figure 4. Example of Docket from CFPB’s Website113

***
The websites surveyed were, therefore, generally highly navigable, with all or most
maintaining a search engine and a sitemap and/or index on their homepage. In addition, all of the
websites maintained one or more adjudication section, all of which offered a variety of
organizational and navigational features.

_appeals/bca/decisions/das/bcasanct; Decisions, OCCUP. SAFETY & HEALTH REV. COMM’N (last visited Jan. 7, 2017),
http://oshrc.gov/decisions/index.html.
111
See, e.g., American Advisors Group, Enforcement Actions, Enforcement, CONSUM. FINANC. PROT. BUREAU (last
visited Dec. 15, 2016), http://www.consumerfinance.gov/policy-compliance/enforcement/actions/american-advisorsgroup/.
112
See, e.g., Equinox Holdings, Inc., Case Search, Cases & Decisions, NAT’L LAB. RELAT. BD. (last visited Dec. 17,
2016), https://www.nlrb.gov/case/20-CA-167342. It also contains a list of participants and summary of the allegation.
See id.
113
Citibank, N.A., Department Stores National Bank, and CitiFinancial Servicing, LLC, Enforcement Actions,
Enforcement, CONSUM. FINANC. PROT. BUREAU (last visited Jan. 9, 2017), http://www.consumerfinance.gov/policycompliance/enforcement/actions/citibank-department-stores-national-bank-citifinancial-servicing/.

22

April 10, 2017
B. Disclosure Practices
1. General Disclosure Practices
Agency disclosure practices vary, and the unique organizational features of each website
and adjudication section render it difficult to break down agencies’ practices into manageable
categories. That said, certain practices observed during the survey stood out.
Some websites disclosed all three types of adjudication materials (first line adjudicators’
orders, appellate decisions, and supporting adjudicatory materials), grouping the materials together
within individual docket pages. EPA and FMC’s websites are good examples of a large and
medium-sized or small agency (based on number of agency personnel), respectively, that fell
within this group. Individual decisions issued by EPA’s ALJs and Environmental Appeals Board
(EAB) were available from the agency’s “Enforcement” page.114 A wide and diverse array of ALJ
and appellate orders and decisions were available among the decisional listings, including various
ALJ and EAB procedural orders (e.g., scheduling orders, orders on motions to extend filing
deadlines or hearing dates), ALJ initial decisions, and EAB final orders. Decisions were in PDF
format.
Two subpages accessible from the “Enforcement” page—the “Administrative Law Judges’
E-Docket Database” and the EAB page—enabled users to search adjudicatory materials by docket.
Dockets (active and closed) were arranged in reverse chronological order by date of filing.115 The
ALJ database allowed filtering by EPA region, year, and statute.116 Selecting the hyperlinkedname of a proceeding in either page directed the user to a screen containing an “Index of Filings.”
Each index contained a list of orders and adjudicatory materials filed in a case, all accessible via
hyperlink. For example, the index of filings for a 2015 case entitled In re Nova Mud, Inc. contained
PDF copies of eight records: the complaint, faxed answer, original answer and copy, letter
forwarding the case to the ALJ, letter of invitation to participate in alternative dispute resolution,
order of designation, initial prehearing order, and consent agreement and final order.117

114

Cases and Settlements, U.S. ENVTL. PROT. AGENCY (last visited Dec. 19, 2016),
https://www.epa.gov/enforcement/cases-and-settlements.
115
Administrative Law Judges’ E-Docket Database, U.S. ENVTL. PROT. AGENCY (last updated Dec. 19, 2016),
https://yosemite.epa.gov/oarm/alj/alj_web_docket.nsf; EAB Dockets, U.S. ENVTL. PROT. AGENCY (last updated Dec.
19, 2016), https://yosemite.epa.gov/oa/EAB_Web_Docket.nsf/EAB+Dockets?OpenPage.
116
Administrative Law Judges’ E-Docket Database, U.S. ENVTL. PROT. AGENCY (last updated Dec. 19, 2016),
https://yosemite.epa.gov/oarm/alj/alj_web_docket.nsf.
117
Nova Mud, Inc., Administrative Law Judges’ E-Docket Database, U.S. ENVTL. PROT. AGENCY (last visited Jan. 6,
2017),
https://yosemite.epa.gov/oarm/alj/alj_web_docket.nsf/9886a221ad53f23b85257bd30051dc69/901f4a21d72d858c85
257df8006e75cf!OpenDocument&Highlight=2,Nova,Mud.

23

April 10, 2017
Figure 5. Example of an “Index of Filings” from EPA’s Website118

While significantly smaller than EPA, FMC maintained an equally comprehensive
adjudicatory section on its website.119 Like EPA’s, FMC’s website contained a wide array of
orders and opinions, including initial and procedural orders and Commission final decisions. Also
like EPA’s, FMC’s website posted a large number of supporting materials, including various types
of pleadings and motions. Clicking on the “Documents & Proceedings” link on the homepage’s
banner led to a page containing links to several adjudicatory sections, including a section entitled
“Activity Logs.” That section maintained a listing of all documents issued or filed in proceedings
before the Commission (dating as far back as the 1980s in a few instances).120 By navigating to
the “Docket Logs” page and clicking on a case name, a user could view the decisions and
supporting adjudicatory materials issued or filed in that case.121 For example, clicking on the case
Global Link Logistics Inc. v. Hapag-Lloyd AG delivered the user to a page containing a docket list
akin, in substance, to the federal court docket sheets available on PACER. Several records,
including the complaint, a motion to dismiss and response thereto, the initial decision, a motion to
enlarge the time for filing exceptions to the initial decision, and the order approving the settlement
agreement and dismissing the proceeding, were all available in PDF format. Additionally, docket
118

Id.
Employment Cubes, March 2016, EP-Environmental Protection Agency, FedScope, U.S. OFF. PERS. MGMT. (last
visited Dec. 30, 2016), https://www.fedscope.opm.gov/ibmcognos/cgi-bin/cognosisapi.dll (indicating that, as of
March 2016, EPA employed 15,500 employees); Employment Cubes, March 2016, MC-Federal Maritime
Commission, FedScope, U.S. OFF. PERS. MGMT. (last visited Dec. 30, 2016), https://www.fedscope.opm.gov/ibmcogn
os/cgi-bin/cognosisapi.dll (indicating that, as of March 2016, FMC employed 122 employees) (indicating that, as of
March 2016, FMC employed 122 employees).
120
See Proceeding or Inquiry Log Search, FED. MARITIME COMM’N (last visited Dec. 19, 2016),
http://www.fmc.gov/electronic_reading_room/proceeding_or_inquiry_log_search.aspx.
121
See, e.g., 16-17 – Connie Lane Christy and Christy Collection International Inc. ex rel. The Annie Grace
Foundation for the Children of Bali Indonesia v. Air 7 Seas Transport Logistics Inc., FED. MARITIME COMM’N (last
visited Dec. 19, 2016), http://www.fmc.gov/16-17/.
119

24

April 10, 2017
notations indicating, for instance, that the initial order had been served on the parties or that the
agency had received the parties’ filings, were also listed.122
Figure 6. Example of Docket from FMC’s Website123

Other agencies’ adjudication sections did not group decisions and supporting adjudication
materials together, even if they did maintain all three types of adjudicatory materials. The section
of DOL’s website dedicated to the department’s Administrative Review Board, for example,
contained a host of decisions dating back to 1996 (the year of EFOIA’s enactment), all available
in PDF or HTML format.124 Although no supporting materials accompanied the decisions, a select
number of briefs were accessible from two separate sections on the page.125

13-07 – Global Link Logistics Inc. v. Hapag-Lloyd AG, FED. MARITIME COMM’N (last updated April 14, 2015),
http://www.fmc.gov/13-07/.
123
Id.
124
USDOL/OALJ Reporter: Decisions of the Administrative Review Board by Date – May 1996 to Present,
Administrative Review Board, U.S. DEPT. LABOR (last visited Dec. 21, 2016), http://www.oalj.dol.gov/PUBLIC/ARB
/REFERENCES/CASELISTS/ARBINDEX.HTM; USDOL/OALJ Reporter: Decisions of the Administrative Review
Board by Name of First Non-DOL Party, Administrative Review Board, U.S. DEPT. LABOR (last visited Dec. 21, 2016),
http://www.oalj.dol.gov/PUBLIC/ARB/REFERENCES/CASELISTS/ARBLIST_ALPHA3.HTM.
125
Board Briefs, Administrative Review Board, U.S. DEPT. LABOR (last visited Dec. 21, 2016),
https://www.dol.gov/arb/briefs.htm; Recent Postings, Administrative Review Board, U.S. DEPT. LABOR (last visited
Dec. 21, 2016), https://www.dol.gov/arb/welcome.html.
122

25

April 10, 2017
While many websites disclosed all or seemingly all adjudicatory decisions, others, such as
SSA’s
and, as mentioned above, PBGC’s websites, only disclosed “significant” or
“precedential” decisions.127 Agencies that follow this practice presumably take their cue from the
prevailing interpretation of § 552(a)(2)(A), and indeed the reason behind such a policy is likely
similar to the reason the Attorney General originally interpreted that provision as only applying to
precedential decisions: the impracticability of maintaining copies of every decision issued by an
agency in agency reading rooms.128 Of course, the Attorney General issued this interpretation in
the days before electronic reading rooms. Disclosing non-precedential along with precedential
decisions today would surely be less impracticable than it was in 1966.
126

Half of the websites surveyed did not post supporting adjudication documents on their
websites. The value of an agency’s adjudication section, from the standpoint of transparency, is
greatly increased by the inclusion of supporting adjudication materials. That said, while this report
recommends that agencies disclose such records on their websites, it is certainly not intended to
imply that websites that do not do so necessarily maintain poor adjudication sections. FMSHRC’s
website, for example, did not contain supporting adjudicatory materials.129 Even so, the website’s
library of Commission and ALJ decisions130 was one of the most extensive and orderly decisional
libraries surveyed.
Lastly, one agency, OMHA, did not disclose any decisions or supporting adjudication
materials on its website (or, rather, on its section of the larger Department of Health & Human
Services website). OMHA’s decision to not post adjudicatory materials online is likely supported
by law and understandable policy concerns. For example, FOIA Exemption 6 exempts from
mandatory disclosure medical and personnel files if disclosing such materials “would constitute a
clearly unwarranted invasion of personal privacy.”131 Under this exemption, courts have upheld
the nondisclosure of information about patients’ medical conditions and Medicare records.132
OMHA is therefore likely not in violation of FOIA. Nevertheless, given that OMHA is second

SSA’s unique disclosure practice is discussed in Part IV.C, infra.
Appeals Board Decisions, PENS. BEN. GUAR. FUND (last visited Jan. 6, 2017), http://www.pbgc.gov/prac/appealsboard/appeals-decisions.html (claiming that the website only discloses decisions of its Appeals Board that the agency
considers “significant or relevant to a large number of participants.”); Preface, Rulings, SOC. SEC. ADMIN. (last visited
Jan. 11, 2017), https://www.ssa.gov/OP_Home/rulings/rulings-pref.html (stating that Social Security Rulings, in
which certain adjudication decisions are memorialized, “make available to the public a series of precedential decisions
relating to Federal old-age, survivors, disability, supplemental security income, and black lung benefits programs”).
128
See Memorandum on the Public Information Section of the APA, supra note 39, at 15.
129
As referenced in note 90, supra, the FMSHRC website does provide audio files of oral arguments. See Oral
Arguments, FED. MINE SAFETY & HEALTH REV. COMM’N (last visited Dec. 20, 2016),
https://www.fmshrc.gov/meetings-arguments/arguments. However, such audio files do not fall within the report’s
definition of supporting adjudicatory materials.
130
Decisions, FED. MINE SAFETY & HEALTH REV. COMM’N (last visited Dec. 29, 2016),
https://www.fmshrc.gov/decisions; Cases on Review, FED. MINE SAFETY & HEALTH REV. COMM’N (last visited Dec.
29, 2016), https://www.fmshrc.gov/content/cases-review.
131
5 U.S.C. § 552(b)(6).
132
See U.S. DEP’T OF JUSTICE, OFFICE OF INFORMATION POLICY, GUIDE TO THE FREEDOM OF INFORMATION ACT,
EXEMPTION 6, at 420, 480 (2009 ed.) (discussing and citing relevant cases).
126
127

26

April 10, 2017
only to SSA in the number of hearings conducted by ALJs, it is at least notable that it does not
post decisions or supporting adjudication materials on its website.133
Other agencies harbor concerns about disclosing sensitive information, but these concerns
do not prevent them from posting adjudication materials on their websites. Many agencies redact
personal identifiers or sensitive information from decisions.134 For example, decisions of DOL’s
Employees’ Compensation Appeals Board issued after August 1, 2006, do not display the full
names of claimants. References are limited to claimants’ first and last initials.135 Agencies that
maintain reservations about posting decisions containing sensitive information may well consider
adopting policies similar to those of DOL or other agencies. Doing so would allow them to strike
the right balance between safeguarding the privacy interests of individuals and entities that are
party to their proceedings on the one hand, while shining light on the agency’s practices and
governing laws and procedures on the other.
2. Interviews
Agency disclosure practices vary. This variation may be due to any number of reasons.
Resource constraints, stakeholder views, staffing levels, and other factors unique to each agency
surely play a role. This study, however, revealed that a handful of agencies do disclose all or at
least all significant decisions and adjudicatory materials on their websites. In order to understand
the costs and benefits to agencies in maintaining comprehensive or near-comprehensive online
adjudication sections, and to discover if other agencies could achieve similar results, I reached out
to personnel from a handful of those agencies in a series of e-mail and telephone conversations.
The conversations indicated that, although maintaining extensive online libraries of adjudicatory
decisions and supporting materials may impose upfront costs, agencies may reap dividends,
financial or otherwise, in the long term from doing so.
The employees I spoke with represented FMC, CPSC, and NLRB, three agencies that
disclose all or nearly all adjudication materials on their websites. I asked each employee two
general questions. First, I inquired as to the costs incurred by his or her agency in maintaining its
website’s adjudication section, in a hard dollar figure or in terms of manpower. Second, I asked
each employee to articulate the perceived benefits to his or her agency and agency stakeholders in

In the interest of avoiding painting an inaccurate picture of the Department of Health & Human Services’ disclosure
practices relative to Medicare decisions, it should be noted that the Medicare Appeals Council (a component of the
Departmental Appeals Board and the last level of administrative proceedings for Medicare proceedings) does post
certain significant decisions online. See Medicare Appeals Council (Council) Decisions, Decisions, DAB, MEDICARE
APP. COUNCIL, DEPT. OF HEALTH & HUMAN SERVS. (last visited Jan. 11, 2017), https://www.hhs.gov/about/agencies
/dab/decisions/council-decisions/index.html.
134
PBGC, for example, deletes personal identifiers from the decisions of its Appeals Board. Appeals Board Decisions,
PENS. BEN. GUAR. CORP. (last visited Dec. 29, 2016), http://www.pbgc.gov/prac/appeals-board/appealsdecisions.html. While NLRB maintains a large collection of motions, briefs, and other supporting materials, many
documents, including many complaints and responsive pleadings that contain information required to be redacted, are
only available to the public pursuant to FOIA records requests. Email of Elizabeth Kilpatrick, Asst. Gen. Counsel,
Div. of Ops.-Mgmt., Nat’l Labor Rel. Bd., to Daniel Sheffner, Att’y Advisor, Admin. Conf. of the U.S. (Dec. 28,
2016, 2:52 p.m. EST) (on file with author).
135
Board Orders and Decisions, Employees’ Compensation Appeals Board, U.S. DEPT. LABOR (last visited Dec. 29,
2016), https://www.dol.gov/ecab/decisions.htm.
133

27

April 10, 2017
maintaining a comprehensive or nearly comprehensive library of adjudicatory decisions and
supporting materials on its website.136
At the time of our exchanges, the interviewees were unable to place a specific dollar figure
on the costs of maintaining their agencies’ online adjudication sections. The NLRB employee I emailed indicated that about three to five employees are engaged in the overall maintenance and
operation of the various systems involved in running NLRB’s website. 137 She estimated that the
aggregate staffing expense in maintaining the adjudication component is equal to approximately
two to three “full-time equivalents” per year.138 The CPSC official I spoke with reported that much
of the cost of maintaining CPSC’s adjudication section is embedded in the agency’s external
contract for web services, and that only one or two staff attorneys are charged with coordinating
with the communications office to post new filings on CPSC’s website.139 For her part, the FMC
official I spoke with estimated that her agency’s adjudication section costs only about $1,000
annually to maintain.140 One employee (a grade 8 on the General Schedule payment scale) spends
about one-third of each day uploading and posting documents to the agency’s website.141
The interviewees were certain that maintaining comprehensive or near-comprehensive
adjudication sections was beneficial to their agencies and stakeholders. The CPSC and FMC
officials both acknowledged that attorneys practicing before their respective agencies closely
follow developments in adjudicative proceedings in which they are not involved.142 The latter
commented that if her agency did not disclose all adjudication materials on its website, it would
invariably receive disclosure requests from members of the FMC bar.143 A second CPSC
employee reported that posting adjudication materials on the agency’s website was the most
efficient way of complying with the agency’s regulations governing public inspection of its
adjudication dockets.144 Lastly, the NLRB employee I e-mailed informed me that dissemination
of the various orders, opinions, and supporting materials on NLRB’s website provides parties and
non-parties alike with greater access and insight into the agency’s processes, which, hopefully,
The second question (as it was e-mailed) also included a reference to “other” documents disseminated on agency
websites. This category, however, was not ultimately included in the final analysis of the surveys’ findings, nor did
the recipients specifically speak to any “other” materials in their responses.
137
Email of Elizabeth Kilpatrick, Asst. Gen. Counsel, Div. of Ops.-Mgmt., Nat’l Labor Rel. Bd., to Daniel Sheffner,
Att’y Advisor, Admin. Conf. of the U.S. (Dec. 2, 2016, 9:36 a.m. EST) (on file with author).
138
Id. A full-time equivalent, or FTE, is calculated as the total hours worked in a job divided by the number of hours
in a full-time schedule. Peter R. Orszag, Dir., Office of Mgmt. & Budget, Memorandum for the Heads of Departments
and Agencies, Implementing Guidance for the Reports on Use of Funds Pursuant to the American Recovery and
Reinvestment Act of 2009, at 34 (June 22, 2009).
139
Telephone Interview with Scott Wolfson, Commc’n Dir. & Senior Advisor to the Chairman, Consumer Prod. Safety
Comm’n (Dec. 21, 2016).
140
Telephone Interview with Official at Fed. Maritime Comm’n (Jan. 3, 2017). FMC’s webmaster functions are
handled internally, with the help of the hosting site. Id.
141
Id.
142
Telephone Interview with Scott Wolfson, Commc’n Dir. & Senior Advisor to the Chairman, Consumer Prod. Safety
Comm’n (Dec. 21, 2016); Telephone Interview with Rachel E. Dickon, Asst. Sec’y, Fed. Maritime Comm’n (Jan. 3,
2017).
143
Telephone Interview with Official at Fed. Maritime Comm’n (Jan. 3, 2017).
144
Email of Official at Consumer Prod. Safety Comm’n, to Daniel Sheffner, Att’y Advisor, Admin. Conf. of the U.S.
(Dec. 20, 2016, 1:01 p.m. EST) (on file with author). She also acknowledged that it allowed for immediate public
access to the agency’s adjudicatory information. Id.
136

28

April 10, 2017
inspires public trust.145 She also noted that posting materials online translates to lower printing
costs and fewer FOIA requests.146
The agency employees’ responses reveal that agencies that do not already do so may be
able to build and maintain comprehensive or near-comprehensive adjudicatory sections at minimal
cost. Of course, all agencies are diverse and subject to unique constraints, so this conclusion is
surely subject to qualification. That said, FMC, CPSC, and NLRB differ in many important
respects, most notably in terms of size, focus, and caseload;147 yet, none of the interviewees
indicated that maintaining comprehensive or near-comprehensive adjudication sections was costprohibitive. In fact, they all articulated several benefits to their agencies which appear to outweigh
any costs (monetary or otherwise), whether they be in the form of time or money saved through
the avoidance of excessive FOIA requests or printing costs, or efficient compliance with internal
transparency requirements, or else the countless benefits engendered by increased public trust and
stakeholder satisfaction.
IV.

CASE STUDIES

This Part presents a more detailed analysis of agency disclosure practices and navigation
tools by examining the websites of three agencies—FTC, FMSHRC, and SSA. Each website sits
at a different point on the continuum of comprehensiveness and navigability revealed during this
study. These case studies help inform the recommendations offered in this report and, thus,
hopefully ensure that they are acceptable to all agencies, tailored as they must be to the unique
situations and constraints of each. All three of the websites discussed below possess virtues
separate and apart from their disclosure practices. Nothing in this or any other part of the report,
therefore, should be taken as an assessment of the websites’ overall qualities. That said, some
websites are more comprehensive and navigable than others, and FTC, FMSHRC, and SSA’s
websites provide demonstrable examples of this reality.
A. Federal Trade Commission
1. Adjudication Overview
FTC’s adjudication proceedings largely consist of enforcement actions authorized by the
Federal Trade Commission Act (FTCA).148 The procedural formality and complexity of the
agency’s proceedings, conducted under the APA’s formal hearing provisions, resemble litigation

Email of Elizabeth Kilpatrick, Asst. Gen. Counsel, Div. of Ops.-Mgmt., Nat’l Labor Rel. Bd., to Daniel Sheffner,
Att’y Advisor, Admin. Conf. of the U.S. (Dec. 2, 2016, 9:36 a.m. EST) (on file with author).
146
Id.
147
FMC, at around 122 employees, is much smaller than CPSC (~536) and NLRB (~1,573). See Employment Cubes,
March
2016,
FedScope,
U.S.
OFF.
PERS.
MGMT.
(last
visited
Jan.
3,
2017),
https://www.fedscope.opm.gov/ibmcognos/cgi-bin/cognosisapi.dll. Additionally, NLRB and FMC have higher
adjudication caseloads than CPSC. CPSC’s adjudication section contains five cases (albeit with upwards of 500
adjudication materials), all of which began in 2012. Recall Lawsuits: Adjudicative Proceedings, U.S. CONSUMER
PROD. SAFETY COMM’N (last visited Jan. 3, 2017), https://www.cpsc.gov/Recalls/Recall-Lawsuits/AdjudicativeProceedings. Compare that to the zero cases it was engaged in between 2001 and 2012. Telephone Interview with
Scott Wolfson, Commc’n Dir. & Senior Advisor to the Chairman, Consumer Prod. Safety Comm’n (Dec. 21, 2016).
148
15 U.S.C. §§ 41–58.
145

29

April 10, 2017
in federal court.149 Parties are generally represented by counsel. ALJs hold prehearing
conferences, resolve discovery disputes, oversee motion practice, and preside over full evidentiary
hearings. Following a hearing, the ALJ issues an initial decision. Parties may appeal an ALJ’s
decision to the Commission,150 which then issues a final decision. Appeals may also be initiated
on the Commission’s own motion.151
FTC proceedings are often factually complex and may implicate a wide variety of industry
practices. Cases include actions to enforce the FTCA’s prohibition of unfair or deceptive acts or
practices, as well as of unfair methods of competition; the Clayton Antitrust Act’s152 proscription
against unlawful corporate mergers, interlocking directorates, and certain discriminatory pricing
and product promotion practices; and the disclosure requirements of the Textile Fiber Products
Identification Act.153 Remedies available in actions brought by the agency include cease and desist
orders, findings of violation or non-compliance, divestiture, and enjoinment from importing wool,
fur, or textile fiber goods.154
2. Online Dissemination of Adjudication Materials
a. Navigability
The main search engine on FTC’s website, located on the top right-hand corner of the
homepage, allows users to focus their searches specifically on adjudicatory materials. Users are
able to sort results by relevancy or title and to filter by “Content Type,” “Date,” and “Site.” 155 The
“Content Type” scroll box offers several different “types” or categories with which users can focus
their searches. Conducting a search while filtering by the “Cases,” “Commission Decision
Volume,” or “Petition to Quash” content types will generate a list of adjudication materials that
can be found in correspondingly named pages of the website’s adjudication section. 156 Filtering
by “Cases” will produce links to administrative and federal court dockets that house decisions and
relevant supporting adjudication materials. Filtering by “Commission Decision Volume”
produces links to scanned volumes of the Federal Trade Commission Decisions reporter series.
The compilation, first published in 1920, contains Commission decisions dating from 1915 to the

149

FTCAADJU0001, Federal Administrative Adjudication, ADMIN. CONF. OF THE U.S. (last visited Dec. 4, 2016),
http://acus.law.stanford.edu/scheme/ftcaadju0001.
150
16 C.F.R. § 3.52(b).
151
Id. § 3.53. Additionally, FTC regulations provide for automatic review by the Commission of an ALJ decision in
proceedings in which the Commission sought preliminary relief in a parallel federal court proceeding, even if no notice
of appeal has been filed. Id. § 3.52(a).
152
15 U.S.C. §§ 12–27.
153
Id. §§ 70–70k.
154
A full list of FTC’s case types can be found on the Federal Administrative Adjudication database. See
FTCAADJU001-Case Type 1, FTCAADJU001-Case Type 2, FTCAADJU001-Case Type 3, FTCAADJU001-Case
Type 4, FTCAADJU001-Case Type 5, FTCAADJU001-Case Type 6, FTCAADJU001-Case Type 7, FTCAADJU001Case Type 8, Federal Administrative Adjudication, ADMIN. CONF. OF THE U.S. (last visited Dec. 4, 2016),
http://acus.law.stanford.edu/scheme/ftcaadju0001.
155
See Search Results, Search FTC, FED. TRADE COMM’N (last visited Dec. 30, 2016),
https://www.ftc.gov/search/site/adjudication.
156
Id.

30

April 10, 2017
present-day.157 Filtering by “Petitions to Quash” limits searches to petitions to limit or quash
subpoenas and civil investigative demands, and related documents.
The website also maintains a helpful site map on its homepage. The site map rests at the
bottom of the homepage (and indeed of every page on the website). It consists of links to the
different sections of the FTC website that correspond with the links located on the horizontal bar
at the top of the homepage.158 Underneath each of these main links are additional links that, if
selected, direct users to the subpages of the main sections of the website. For example, to access
adjudication materials, a user may click the “Enforcement” link on the site map, which will then
transport the user to the main page of the “Enforcement” section. From there, the user can navigate
to adjudication materials by clicking on the “Cases and Proceedings” link on the left-hand side of
the page. Alternatively, instead of selecting “Enforcement” on the site map, the user could go
directly to the “Cases and Proceedings” page by clicking on the identically named link located
directly beneath the “Enforcement” link.
All adjudication materials are located on the “Cases and Proceedings” page. The page can
be accessed through resort to the “Enforcement” link on the horizontal banner at the top of the
homepage or, as just discussed, the site map.159 The “Cases and Proceedings” page offers a list of
approximately 2,700 cases organized by the date the cases were last updated. Cases may also be
organized alphabetically by name.160 Both administrative and federal court proceedings are listed,
with each case identified as either “Administrative” or “Federal.” 161 Clicking on a case will take
the user to a docket page that contains a case summary, the date the case page was last updated,
the “FTC Matter/File Number,” and the case’s docket number. Underneath the “Case Timeline”
heading, users will find links to orders, opinions, and supporting adjudication materials issued and
filed in that case, all in PDF format. The records are listed by date of issuance or filing in reverse
chronological order.162
A special search function on the left-hand side of the page allows users to search within
the “Cases and Proceedings” page. Users may filter searches by “Mission” (“Competition” or
“Consumer Protection”), “Type of Action” (federal or administrative), and “Enforcement Type”
(e.g., administrative complaints or civil penalties). Users may further choose to arrange cases by
For the most recent version available as of the date of this report, see FED. TRADE COMM’N, FEDERAL TRADE
COMMISSION DECISIONS: FINDING, OPINIONS, AND ORDERS Vol. 159 (Jan.–June 2015), available at
https://www.ftc.gov/system/files/documents/commission_decision_volumes/volume-159/vol159.pdf.
158
The only exception is the “Site Information” link on the site map. There is no such link on the horizontal bar. FED.
TRADE COMM’N (last visited Dec. 30, 2016), https://www.ftc.gov/.
159
Users may also make their way to the “Cases and Proceedings” page via the website’s “FOIA Reading Rooms”
subsection. Accessible through the “FOIA” link on the “About the FTC” page, users must then click on the “FTC
Opinions and Orders” and then “Commission Actions” links. FOIA Reading Rooms, FED. TRADE COMM’N (last
visited Dec. 31, 2016), https://www.ftc.gov/about-ftc/foia/foia-reading-rooms. All executive agency websites contain
pages dedicated to FOIA. Some of the websites included in this study contained FOIA pages that linked to §
552(a)(2)(A) adjudicatory decisions. In most cases, if a FOIA section provided access to decisions at all, it did so
through a link to the website’s separate adjudication section(s).
160
See Cases and Proceedings, FED. TRADE COMM’N (last visited Dec. 31, 2016),
https://www.ftc.gov/enforcement/cases-proceedings.
161
Id.
162
See, e.g., 1-800 Contacts, Inc, In the Matter of, Cases and Proceedings, FED. TRADE COMM’N (last updated Dec.
30, 2016), https://www.ftc.gov/enforcement/cases-proceedings/141-0200/1-800-contacts-inc-matter.
157

31

April 10, 2017
“released date” or “updated date.”163 An “Advanced Search” option allows for more sophisticated
filtering, such as by topic, matter number, and industry.164
Users are not limited in their search for adjudication materials to the main “Cases and
Proceedings” page. Several links on the left-hand side of the page enable users to further filter or
organize their searches. The aforementioned “Petitions to Quash” and “Commission Decision
Volumes,” which are optional filters on the main search engine, are available to those users who
wish to narrow their searches to either documents relevant to actions to quash or limit subpoenas
or civil investigative demands, or to decisions of the Commission, respectively. 165 The
“Adjudicative Proceedings” link contains a list of cases organized in exactly the same fashion as
the main “Cases and Proceedings” page, but without federal court cases.166 Additionally, the “Case
Document Search” subpage, also located on the left-hand side of the “Cases and Proceedings”
page, arranges decisions and supporting adjudicatory materials by the records themselves, instead
of grouped together by case.167
b. Adjudication Materials
A scan of the documents posted in any given case page reveals the formal and procedurally
complex structure of FTC adjudication proceedings. Decisions disposing of procedural and
substantive motions line the virtual shelves of the FTC website. PDF copies of hearing level
scheduling orders, orders disposing of a variety of motions (including those related to discovery),
and initial decisions can be found with relative ease, whether one is using the main search engine
or is searching within the “Cases and Proceedings” page. Commission-level appellate decisions,
both procedural orders and final dispositions, are also available. For example, the docket page for
In re Penn State Hershey Medical Center paints a picture of the diversity of decisions one can find
on the website; there are no fewer than 17 decisions listed in the docket page, from the order
designating the ALJ to the Commission’s dismissal of the complaint.168 The earliest available

Cases and Proceedings, FED. TRADE COMM’N (last visited Jan. 22, 2017), https://www.ftc.gov/enforcement/casesproceedings.
164
Cases and Proceedings: Advanced Search, Cases and Proceedings, FED. TRADE COMM’N (last visited Dec. 31,
2016), https://www.ftc.gov/enforcement/cases-proceedings/advanced-search.
165
Petitions to Quash, Cases and Proceedings, FED. TRADE COMM’N (last visited Dec. 31, 2016),
https://www.ftc.gov/enforcement/cases-proceedings/petitions-quash; Commission Decision Volumes, Cases and
Proceedings, FED. TRADE COMM’N (last visited Dec. 31, 2016), https://www.ftc.gov/enforcement/casesproceedings/commission-decision-volumes.
166
Adjudicative Proceedings, Cases and Proceedings, FED. TRADE COMM’N (last visited Dec. 31, 2016),
https://www.ftc.gov/enforcement/cases-proceedings/adjudicativeproceedings?combine=&field_mission_tid=All&field_enforcement_type_tid=All&date_filter[min]=&date_filter[ma
x]=.
167
Case Document Search, Cases and Proceedings, FED. TRADE COMM’N (last visited Jan. 2, 2017),
https://www.ftc.gov/enforcement/cases-proceedings/case-document-search. The “Petitions to Quash,” “Adjudicative
Proceedings,” and “Case Document Search” subpages allow users to filter results in similar fashions as allowed by
the main “Cases and Proceedings” page, thus ensuring that more sophisticated users can further focus their searches
with more specificity. They do not, however, offer similar advanced searching options.
168
The Penn State Hershey Medical Center/PinnacleHealth System, Cases and Proceedings, FED. TRADE COMM’N
(last updated Oct. 23, 2016), https://www.ftc.gov/enforcement/cases-proceedings/141-0191/penn-state-hersheymedical-centerpinnaclehealth-system.
163

32

April 10, 2017
decisions are mostly from the early to mid-1990s, although much earlier decisions can be found,169
most notably from the “Commission Decision Volume” page.
FTC’s website would be impressive even if the types of materials accessible from its
adjudication section were limited to its diverse collection of first line and appellate decisions. But
the “Cases and Proceedings” page goes a step further by posting a seemingly comprehensive
collection of supporting adjudication materials, as well. On each case page, as well as on the “Case
Document Search” page, users may access PDF copies of a variety of pleadings, motions, notices,
witness lists, exhibits, and other materials. The docket page for In re McWane, Inc. and Star Pipe
Products, Ltd., for instance, contains well over 100 supporting administrative materials, ranging
from the administrative complaint and responsive pleadings, to various substantive and procedural
motions, supporting briefs, and other types of records.170
B. Federal Mine Safety & Health Review Commission
1. Adjudication Overview
FMSHRC’s adjudication proceedings largely consist of formal APA hearings arising under
the Federal Mine Safety and Health Act of 1977 (Mine Act).171 ALJs oversee discovery disputes,
motion practice, and full evidentiary hearings. Parties may appeal ALJ decisions to the
Commission for appellate review, or the Commission may review a case on its own motion. ALJs
may oversee “simplified proceedings” in certain civil penalty contests.172 Parties to simplified
proceedings are not required to file answers, are largely barred from filing motions, and may not
engage in discovery other than as ordered by the ALJ.173
Cases adjudicated before FMSHRC include mine operators’ appeals of citations, orders,
and proposed penalties issued by DOL’s Mine Safety and Health Administration (MSHA), as well
as complaints by miners of unlawful discharge, discrimination, and interference. 174 Private
prevailing parties may recover attorneys’ fees and costs, monetary awards, relief from findings of
violation, and other remedies. MSHA and the Secretary of DOL may recover civil penalties,
injunctive relief, and other relief in actions they initiate.175

See Adjudicative Proceedings, Cases and Proceedings, FED. TRADE COMM’N (last visited Jan. 1, 2017),
https://www.ftc.gov/enforcement/cases-proceedings/adjudicative-proceedings. One can find decisions issued as early
as the 1960s among the cases listed on the main “Cases and Proceedings” page. See, e.g., Transair, Inc. et al., Cases
and Proceedings, FED. TRADE COMM’N (last visited Jan. 1, 2017), https://www.ftc.gov/enforcement/casesproceedings/transair-inc-et-al. (providing link to PDF copy of the Commission’s decision in In re Transair, Inc., et
al., 60 F.T.C. 694 (April 5, 1962)). Cases prior to the 1990s do not appear to post more than the final decision.
170
McWane, Inc., and Star Pipe Products, Ltd., In the Matter of, Cases and Proceedings, FED. TRADE COMM’N (last
updated April 17, 2015), https://www.ftc.gov/enforcement/cases-proceedings/101-0080b/mcwane-inc-star-pipeproducts-ltd-matter.
171
Pub. L. No. 95-164, 91 Stat. 1290 (March 9, 1978).
172
29 C.F.R. § 2700.100(a).
173
Id. § 2700.100(b).
174
29 C.F.R. pt. 2700, subpts. B, C, D, E.
175
See FMSHFADJ0001, Federal Administrative Adjudication, ADMIN. CONF. OF THE U.S. (last visited Jan. 4, 2017),
http://acus.law.stanford.edu/scheme/fmshfadj0001.
169

33

April 10, 2017
2. Online Dissemination of Adjudication Materials
a. Navigability
The main search engine on FMSHRC’s website is located on the top right-hand corner of
the homepage.176 As with FTC, the search engine on FMSHRC’s website allows users to focus
their results on adjudicatory materials. On the left-hand side of the search results page are four
categories of filters: “Everything” (the default “filter”), “Images,” “Commission Decisions,” and
“ALJ Decisions.”177 The latter two filters limit results generated by the search engine to decisions
issued by the Commission and FMSHRC ALJs, respectively. The search results page also offers
an “Advanced Search” option that allows for further filtering. On the advanced search page, users
may narrow their searches by words and phrases, as well as by file type (e.g., PDF).178
The website’s search engine is in some ways easier and more helpful to users who are
searching for adjudication materials than FTC’s main search engine. Users must sift through
several categories of filters to locate the “Cases,” “Commission Decision Volume,” and “Petition
to Quash” filters on FTC’s search results page. By contrast, the “Commission Decisions” and
“ALJ Decisions” filters, two of only four possible options, are clearly visible on the FMSHRC
website’s search results page. Of course, FMSHRC’s jurisdiction is much more limited than
FTC’s, focused as it is on the adjudication of disputes arising under the Mine Act. FTC, on the
other hand, promulgates regulations with industry-wide impact179 and engages in a number of
investigative and policymaking activities in addition to adjudicating enforcement proceedings.
FTC’s website, therefore, caters to a more diverse group of users than FMSHRC’s, and so must
by necessity offer more search options.180 Even so, FMSHRC’s website provides a good example
of a simple yet effective search engine.
The FMSHRC website does not maintain either a site map or an index. Site maps and
indexes were of course revealed by the surveys to be useful in locating the adjudication sections
of agency websites. The lack of such tools on the website does not, however, render a user’s
navigation to the agency’s adjudication sections difficult. Links to Commission and ALJ decisions
are accessible from the “Decisions” page of the website, which itself is accessible from a link on
the banner of the homepage.181 FMSHRC’s website maintains two other adjudication sections
FED. MINE SAFETY & HEALTH REV. COMM’N (last visited Jan. 4, 2017), https://www.fmshrc.gov/. It is powered
by the Bing search engine. See BING (last visited Jan. 4, 2017), http://www.bing.com/.
177
Search Results, FED. MINE SAFETY & HEALTH REV. COMM’N (last visited Jan. 4, 2017),
https://search.usa.gov/search?query=ALJ&submit.x=0&submit.y=0&submit=Send&affiliate=fmshrc.
178
Advanced Search, FED. MINE SAFETY & HEALTH REV. COMM’N (last visited Jan. 4, 2017),
https://search.usa.gov/search/advanced?affiliate=fmshrc&enable_highlighting=true&per_page=20&query=ALJ.
179
FTC, however, is far more inclined to engage in adjudication than substantive rulemaking to achieve policy ends.
See Daniel A. Crane, Debunking Humphrey’s Executor, 83 GEO. WASH. L. REV. 1835, 1859–63 (2015).
180
FMSHRC is also much smaller than FTC, employing fewer than 100 employees. RS-Federal Mine Safety and
Health Review Commission, Employment Cubes, March 2016, FedScope, U.S. OFF. PERS. MGMT. (last visited June 4,
2017), https://www.fedscope.opm.gov/ibmcognos/cgi-bin/cognosisapi.dll.
181
Decisions, FED. MINE SAFETY & HEALTH REV. COMM’N (last visited Jan. 5, 2017),
https://www.fmshrc.gov/decisions. As with the FTC’s “Cases and Proceedings” page, one may also venture to the
“Decisions” page through the website’s FOIA page, accessible through the “FOIA” link on the banner of the
homepage. Freedom of Information Act (FOIA), FED. MINE SAFETY & HEALTH REV. COMM’N (last visited Jan. 5,
2017), https://www.fmshrc.gov/foia. From that page, the “E-Reading Room” link at the bottom will take one to a
176

34

April 10, 2017
that are accessible from the banner—the “Review Commission Arguments & Meetings”182 and
“Cases on Review” pages183—neither of which post adjudication materials. While a user may feel
inclined to venture to one or both of these pages in search of adjudication materials, a quick scan
of either will reveal the futility of such a search. In any event, the descriptively titled “Decisions”
link on the banner of the homepage is very identifiable and easy to find.
The “Decisions” page is divided into three subpages. The first subpage, “Review
Commission Decisions,” contains copies of orders and decisions issued by the agency’s
Commission from 1978 to the present.184 Records, available in PDF format (and HTML as well
for recent decisions), are listed in reverse-chronological order. A search engine is available for
searching within the subpage. More sophisticated users can utilize the optional filters underneath
the search engine to filter their searches by type of record (order or decision), the parties, docket
number, and start and end dates.185 The “ALJ Decision” page is identical to the “Review
Commission Decisions” page, save that it contains copies of ALJ orders.186
The last subpage on the “Decisions” section, entitled “Blue Books,” contains links to
installments of the agency’s Blue Books publications. These publications, issued in monthly
installments since March 1979, contain all Commission decisions and all or most ALJ decisions.187
Links to each monthly publication are grouped together by year. Users can locate the volumes in
which a specific decision is published by entering the case’s citation in a specialized search engine
at the top of the page.
b. Adjudication Materials
The materials available within the three aforementioned subpages consist of all or nearly
all Commission and ALJ decisions. A search will therefore turn up a variety of decisions,
including ALJ orders granting or denying motions for summary decision, dismissal, or petitions
for civil penalties, as well as Commission opinions on review of such decisions. FMSHRC’s
website is therefore an invaluable repository of adjudicatory decisions.

page that contains a whole host of links to sections of the website that contain links to materials required to be disclosed
by 5 U.S.C. § 552(a)(1) and (2). E-Reading Room, Freedom of Information Act (FOIA), FED. MINE SAFETY & HEALTH
REV. COMM’N (last visited Jan. 5, 2017), https://www.fmshrc.gov/foia/e-reading-room. The first set of links directs
users to the subsections of the “Decisions” page.
182
See Review Commission Arguments & Meetings, FED. MINE SAFETY & HEALTH REV. COMM’N (last visited Jan. 4,
2017), https://www.fmshrc.gov/meetings-arguments. The page offers links to oral argument recordings and
Commission meeting notices and recordings.
183
Cases on Review, FED. MINE SAFETY & HEALTH REV. COMM’N (last visited Jan. 4, 2017),
https://www.fmshrc.gov/content/cases-review.
184
Review Commission Decisions, Decisions, FED. MINE SAFETY & HEALTH REV. COMM’N (last visited Jan. 5, 2017),
https://www.fmshrc.gov/decisions/commission.
185
Id.
186
ALJ Decisions, Decisions, FED. MINE SAFETY & HEALTH REV. COMM’N (last visited Jan. 5, 2017),
https://www.fmshrc.gov/decisions/alj.
187
Blue Books, Decisions, FED. MINE SAFETY & HEALTH REV. COMM’N (last visited Jan. 5, 2017),
http://www.fmshrc.gov/decisions/bluebook. The other two sections (“Review Commission Decisions” and “ALJ
Decisions”) consist of the Commission and ALJ decisions issued in the Blue Books.

35

April 10, 2017
FMSHRC, just like half of the agencies surveyed, did not post copies of supporting
adjudication materials on its website. The agency does, as briefly discussed above, hold simplified
proceedings for certain noncomplex civil penalty contests.188 These proceedings require
considerably fewer filings by the parties than do standard proceedings. Depending on the
prevalence of simplified proceedings, the number of supporting adjudication materials filed in
FMSHRC proceedings may be small. There is no data, however, to confirm whether this
assumption is correct.
C. Social Security Administration
1. Adjudication Overview
SSA oversees an enormous adjudication system. Roughly 1,300 ALJs (over 80% of the
total ALJ workforce) conduct hundreds of hearings in more than 160 hearing offices throughout
the country.189 The vast majority of cases involve claims for disability benefits under the agency’s
Social Security Disability Insurance and Supplemental Security Income programs. 190 Benefits
hearings are informal and nonadversarial.191 About 78% of claimants are represented.192 At the
conclusion of a hearing, the ALJ issues a written decision granting or denying benefits, which may
be appealed to SSA’s Appeals Council for remand or final decision.193 If the Appeals Council
does not grant review, the hearing decision constitutes the agency’s final decision.194
2. Online Dissemination of Adjudication Materials
a. Navigability
SSA is the administrator of the country’s largest social insurance program. Reflecting this
fact, its website is designed mainly for the benefit of potential and current social security
beneficiaries, not individuals searching for adjudication decisions. Links to benefit applications,
cost-of-living adjustment information, and other program-related information are prominently
displayed on the website’s homepage. No descriptively titled banner link directs the user to
adjudication materials. While there are both a search engine and a sitemap on the homepage,

188

See 29 C.F.R. § 2700.101.
See SOC. SEC. ADMIN., PUB. NO. 13-11700, ANNUAL STATISTICAL SUPPLEMENT TO THE SOCIAL SECURITY
BULLETIN 2.80 tbl. 2.F8 (2015), available at https://www.ssa.gov/policy/docs/statcomps/supplement/2015/suppleme
nt15.pdf. [hereinafter 2015 STATISTICAL SUPPLEMENT] (revealing that between 2012 and 2014 there were over
800,000 hearing level receipts annually); Kent Barnett, Against Administrative Judges, 49 U.C. DAVIS L. REV. 1643,
1654 (2016).
190
See 2015 STATISTICAL SUPPLEMENT, supra note 189, at 2.81 tbl. 2.F9.
191
20 C.F.R. § 404.900(b); see Frank S. Bloch, et al., Developing a Full and Fair Evidentiary Record in a
Nonadversary Setting: Two Proposals for Improving Social Security Disability Adjudications, 25 CARDOZO L. REV.
1, 3 (2003).
192
SSAOBENE0001–Hearing Level–Procedures, Federal Administrative Adjudication, ADMIN. CONF. OF THE U.S.
(last visited Jan. 12, 2017), http://acus.law.stanford.edu/hearing-level/ssaobene0001-hearing-level-procedures.
193
See 20 C.F.R. §§ 404.967, 405.370, 405.401. The Appeals Council may also review a decision on its own motion.
Id. § 405.401(a).
194
Id. § 404.981.
189

36

April 10, 2017
neither tool is very helpful in locating adjudicatory materials unless the user knows the unique
manner in which SSA adjudication decisions are disclosed.195
SSA does not post copies of the original decisions of its ALJs and Appeals Council on its
website. The agency’s website is denoted in Table 1, above, as disclosing both first line and
appellate decisions, however, because users can access copies of decisions from the website in the
form of the agency’s Social Security Rulings (SSRs).196 SSRs, which are issued under the
authority of SSA’s Commissioner and are binding on the agency, are based on or consist of
different sources of law or policy, including selected ALJ and Appeals Council decisions the
agency deems precedential.197 Decisions are not available in any other format from the website.
SSRs can be reached in multiple ways. Perhaps the most direct route is through the menu
on the website’s homepage. Below “Research, Policy & Planning” on the menu screen are several
links, one of which is entitled “Program Rules.”198 Clicking that link will take the user to the
“Current Program Rules” page, which in turn offers a link to the “Rulings” page.199 The “Rulings”
page contains comprehensive listings of the agency’s SSRs and Acquiescence Rulings. 200
SSRs can be accessed in several ways from the “Rulings” page. A table of contents
divides SSRs into three categories: “Old Age and Survivor’s Insurance,” “Disability Insurance,”
and “Supplemental Security Income.”201 Selecting a hyperlinked-section will direct users to a
page containing further categorical divisions, which categories in turn lead to pages offering links
to all relevant SSRs.202 Users may also locate SSRs through a cumulative index which discloses
a list of rulings issued between 1960 and 2007 that are arranged alphabetically by subject matter,203
or through a “Finding Lists” link that allows users to view yearly listings of rulings; superseded,
rescinded, or modified rulings; and rulings based on court cases.204

195

See supra Part III.B.1.
See Rulings, SOC. SEC. ADMIN. (last visited Jan. 11, 2017), https://www.ssa.gov/OP_Home/rulings/rulings.html.
197
20 C.F.R. § 402.35(b)(1); Preface, Rulings, SOC. SEC. ADMIN. (last visited Jan. 11, 2017),
https://www.ssa.gov/OP_Home/rulings/rulings-pref.html; see, e.g., SSR 68-76a, Sections 216(i) and 22–Disability–
Cessation of Disability, 20 C.F.R. § 404.1539(a) (rescinded 1975) (copy of Appeals Council decision); see also Lowry
v. Soc. Sec. Admin., 2001 U.S. Dist. LEXIS 23474 (D. Ore. Aug. 29, 2001), at *20.
198
Menu, SOC. SEC. ADMIN. (last visited Jan. 13, 2017), https://www.ssa.gov/site/menu/en/.
199
Current Program Rules, SOC. SEC. ADMIN. (last visited Jan. 13, 2017), https://www.ssa.gov/regulations/.
200
Rulings, SOC. SEC. ADMIN. (last visited Jan. 13, 2017), https://www.ssa.gov/OP_Home/rulings/rulings.html.
Acquiescence Rulings provide guidance on how SSA will apply federal circuit court decisions that are at odds with
the agency’s national policies. What are Acquiescence Rulings (ARs)?, Acquiescence Ruling Definition, SOC. SEC.
ADMIN. (last visited Jan. 13, 2017), https://www.ssa.gov/regulations/def-ar.htm. Rulings may also be found through
the website’s “FOIA Reading Room.” FOIA Reading Room, Freedom of Information Act (FOIA), SOC. SEC. ADMIN.
(last visited Jan. 14, 2017), https://www.ssa.gov/foia/readingroom.html. From that page, users can access a link to
the “Rulings” page nested beneath the heading “Social Security Laws, Regulations, and Policies.” Id.
201
Social Security Rulings and Acquiescence Rulings Table of Contents, Rulings, SOC. SEC. ADMIN. (last visited Jan.
14, 2017), https://www.ssa.gov/OP_Home/rulings/rulings-toc.html.
202
See, e.g., Table of Contents, Old Age and Survivor’s Insurance, Old Age Insurance Benefits, SOC. SEC. ADMIN.
(last visited Jan. 14, 2017), https://www.ssa.gov/OP_Home/rulings/oasi/03/SSR-OASI03toc.html.
203
Cumulative Index (1960-2007), Rulings, SOC. SEC. ADMIN. (last visited Jan. 14, 2017), https://www.ssa.gov/OP
_Home/rulings/rulings-idx.html.
204
Finding Lists for Social Security Rulings and Acquiescence Rulings, Rulings, SOC. SEC. ADMIN. (last visited Jan.
14, 2017), https://www.ssa.gov/OP_Home/rulings/rulings-find.html.
196

37

April 10, 2017
b. Adjudication Materials
Only a small subset of SSRs qualify as adjudicatory materials for purposes of this study.
SSRs may take many forms, based as they are on decisions of the Commissioner, opinions of the
Office of General Counsel, policy interpretations, and federal court and administrative
adjudication decisions.205 SSRs based on adjudicative decisions either consist of summaries of
decisions or word-for-word copies. Only the latter are “adjudicatory decisions” for purposes of
this study.
SSA does not publish all adjudicatory decisions as SSRs. Decisions selected for inclusion
in an SSR are those the agency deems precedential.206 SSA, therefore, complies with the
prevailing interpretation of FOIA’s proactive disclosure requirement,207 although not the
expansive vision embodied by the other sources of federal law and policy discussed above. 208
There are several potential reasons the agency only discloses a limited number of decisions on its
website. FOIA Exemption 6, of course, authorizes SSA to withhold records that, if disclosed,
“would constitute a clearly unwarranted invasion of personal privacy.”209 In electing whether or
not to withhold information, the agency “weigh[s] the foreseeable harm of invading a person’s
privacy against the public interest in disclosure.”210 Perhaps SSA believes that, in the vast majority
of cases, it would be too easy for someone to “piece together” the private information from a
redacted decision.211
Another possible reason for SSA’s limited disclosure policy may lie in the nature of
documents filed and issued in disability proceedings. Perhaps there are few distinguishable
differences in the factual and legal backgrounds of cases to warrant disclosing all or a significant
number of its decisions online. Most ALJ decisions are written with the assistance of the agency’s
Findings Integrated Templates (FIT).212 FIT, a measure designed to ensure the quality of ALJ
decisions, provides ALJs with over 2,000 templates for purposes of composing their written
decisions.213 The use of these templates results in the inclusion of some amount of generic

205

Social Security Ruling Definition, Current Program Rules, SOC. SEC. ADMIN. (last visited Jan. 14, 2017),
https://www.ssa.gov/OP_Home/rulings/rulings-find.html.
206
See Lowry, U.S. Dist. LEXIS 23474, at *20.
207
See PROACTIVE DISCLOSURES, supra note 37, at 16; see also Gilhooley, supra note 41, at 62 nn.53-54, 83.
208
See supra Part I.B.1–5.
209
5 U.S.C. § 552(b)(6); see 20 C.F.R. § 402.100(a) (“We may withhold records about individuals if disclosure would
constitute a clearly unwarranted invasion of their personal privacy.”)
210
20 C.F.R. § 402.100(b).
211
See id. (“[I]n our evaluation of requests for records we attempt to guard against the release of information that
might involve a violation of personal privacy because of a requester being able to ‘read between the lines’ or piece
together items that would constitute information that normally would be exempt from mandatory disclosure under
Exemption Six.”). That the agency accords a deep level of respect to individuals’ privacy interests is evidenced by
the fact that disability hearings are closed to the public. See Daniel F. Solomon, Save the Social Security Disability
Trust Fund! And Reduce SSI Exposure to the General Fund, 36 NAT’L ASS’N ADMIN. L. JUDICIARY 142, 221 (2016)
(writing that disability hearings are closed “because [SSA] is overly concerned with the Privacy Act of 1974.”).
212
See generally OFFICE OF THE INSP. GEN., SOC. SEC. ADMIN., OFFICE OF DISABILITY ADJUDICATION & REV.,
DECISION-WRITING PROC., AUDIT REPORT, A-02-09-19068 (Nov. 17, 2010).
213
Id. at 2; see Jonah Gelbach & David Marcus, A Study of Social Security Litigation in the Federal Courts 27 (July
28, 2016) (report to the Admin. Conf. of the U.S.).

38

April 10, 2017
language in decisions, perhaps lessening the value of many decisions from the perspective of
transparency.214
Of course, SSA’s policy is also likely informed by the number of decisions it issues. In
the Supreme Court’s estimation, “[t]he Social Security hearing system is probably the largest
adjudicative agency in the western world.”215 Millions of individuals apply for social security
benefits each year.216 Between FY 2011 and 2014, SSA ALJs issued between 680,963 and 820,848
decisions annually, with each ALJ issuing on average between 43 and 50 dispositions each
month.217 Disclosing all or significantly all decisions, therefore, may be viewed as too burdensome
by the agency.
Additionally, SSA does not disclose supporting adjudication materials on its website. This
may be for the same or additional reasons that it does not disclose all of its ALJ and Appeals
Council decisions.218
***
In sum, FTC, FMSHRC, and SSA’s websites each represent different points along the
continuum of comprehensiveness and navigability that was revealed during the study. FTC’s
website offers ordinary and sophisticated users alike a variety of ways to locate adjudication
materials with its advanced search features and informative sitemap. Posting far more than the
“final opinions . . . [and] orders” that FOIA requires be made available online, FTC disseminates
all or nearly all ALJ and Commission decisions and supporting adjudicatory materials on its
website. In this way, the agency satisfies the transparency and accountability aspirations of the
FRA, PRA, OMB Circular A-130, E-Government Act of 2002, and President Obama’s Open
Government and FOIA Memoranda. That materials are accessible from one easy-to-locate
adjudication section, grouped together by docket, and amenable to easy discovery through filtering
and advanced search options further establishes FTC’s online disclosure practices as worthy of
replication by agencies with the justification and abilities, financial or otherwise, to do so.
FMSHRC’s website also houses the agency’s decisions in a single, easy-to-locate
adjudication section. With a search engine on the homepage that, in its simplicity and
effectiveness, allows users to easily focus their searches on either ALJ or Commission decisions,
the website is highly navigable. Although the website does not disclose supporting adjudication
materials, its orderly and navigable collections of decades’ worth of ALJ and Commission
decisions render it both FOIA-compliant and relatively robust.
214

Gelbach & Marcus, supra note 213, at 27.
Barnhart v. Thomas, 540 U.S. 20, 28-29 (2003) (internal quotation marks and citation omitted).
216
In 2015, claimants filed 2.7 million benefits applications. SOC. SEC. ADMIN., FY 2017 BUDGET OVERVIEW 11 (Feb.
2016), available at https://www.ssa.gov/budget/FY17Files/2017BO.pdf.
217
2015 STATISTICAL SUPPLEMENT, supra note 189, at 2.81, tbl. 2.F9, 2.80, tbl. 2.F8.
218
The agency does not specify the records claimants must file with ALJs. See Harold J. Krent & Scott Morris,
Achieving Greater Consistency in Social Security Disability Adjudication: An Empirical Study and Suggested
Reforms 35 (April 3, 2013) (report to the Admin. Conf. of the U.S.). The Administrative Conference recommended
that SSA require claimants’ representatives (and permit self-represented claimants) to submit standardized pre-hearing
briefs at the hearing stage in Recommendation 2013-1, Improving Consistency in Social Security Disability
Adjudications, 78 Fed. Reg. 41,352 (July 10, 2013).
215

39

April 10, 2017
SSA’s website discloses a select number of decisions that the agency deems precedential.
The manner in which decisions are disclosed—within SSRs—does not lend itself to easy
navigation by a user unaware of this arrangement. Further, the website does not disclose any
supporting adjudication materials. Therefore, while the website is seemingly in compliance with
FOIA’s proactive disclosure requirement, it not as comprehensive as FTC or FMSHRC’s websites.
V.

RECOMMENDATIONS

The following recommendations are based on observations formed from my examination
of the practices of the 24 websites surveyed as part of this study, particularly the case study
websites discussed in Part IV. They are presented with the knowledge that all agencies are subject
to unique programming, stakeholder, and financial constraints, and that the distinctiveness of
agencies’ adjudicative schemes limits the development of workable standardized practices. The
recommendations, however, have been designed to encourage agencies to increase access to
adjudication materials consistent with the objectives of FOIA and other relevant federal laws and
policies, and thereby are hopefully of use to agencies interested in increasing the accessibility of
adjudication materials on their websites and improving their disclosure practices. The
recommendations are intended to be modest, and I believe they can be implemented at minimal
cost to the agencies. In any event, any costs incurred would hopefully be accompanied by any
number of offsetting benefits.
The following recommendations were formed from my examination of a comparative
handful of agency websites. Many of the websites already comply with some or all of the
recommendations, and surely other websites I did not survey do as well. These recommendations,
therefore, are directed at those agencies that do not already engage in any or some of the
recommended practices, and that wish to improve their online disclosure practices and increase
the accessibility of their adjudication materials.
Recommendation 1. Agencies should consider maintaining links on their websites to copies of all
decisions and supporting records issued and filed in adjudication proceedings. In determining
which materials to disclose, agencies should take into account the following factors: (a) the
interests of the public and relevant stakeholders in gaining insight into the agency’s internal
processes; (b) the costs to the agency in disclosing adjudication materials in excess of FOIA’s
requirements; (c) any offsetting benefits the agency may realize in disclosing the same; (d) the
privacy interests of individuals and entities that are the subject of adjudication materials; and (e)
any other relevant considerations, such as other legal requirements or agency-specific
adjudicatory practices.
One of the reasons the Attorney General interpreted § 552(a)(2)(A) 219 as applicable only
to precedential decisions was the belief that maintaining copies of every decision in physical
The FRA, as discussed in Part I.B.2, supra, requires that agencies disclose certain materials online (“records of
general interest or use to the public that are appropriate for public disclosure”), which could include adjudication
materials. Because § 552(a)(2)(A) is the only statutory provision that requires agencies to disclose specific
adjudication materials online (“final opinions . . . [and] orders”), however, that provision is held out as the base online
disclosure requirement for purposes of this recommendation. Agencies should, of course, heed the FRA and any other
laws relevant to online disclosure when formulating and implementing their disclosure policies. For this very reason,
219

40

April 10, 2017
reading rooms would be impracticable.220 The Internet, however, has made it easier than ever
before for agencies to maintain vast libraries of data and records, though, of course, it is not
costless. Together, precedential decisions, non-precedential decisions, pleadings, briefs, motions,
and other adjudication materials offer a more complete picture of agency processes than one can
find through resort to precedential decisions alone. Posting all adjudication records issued and
filed in formal and semi-formal proceedings online would therefore further FOIA’s policy in favor
of eliminating secret agency law, as well as the transparency aspirations of the FRA, PRA, OMB
Circular A-130, E-Government Act, and the open government and FOIA policies established by
the Obama Administration.
This study has revealed that it may be possible for agencies, no matter their size or policymaking preference or practice, to disclose all first line orders, appellate opinions, and supporting
adjudication materials issued and filed in formal and semi-formal proceedings. But every agency
is subject to unique circumstances and constraints, and this study does not presume to suggest that
all agencies are able to or should replicate, for example, FTC’s disclosure practices. Therefore,
when determining whether to disclose adjudication materials in excess of FOIA’s requirements,
agencies should take into account: (a) the interests of the public and relevant stakeholders in
gaining insight into the internal processes of the agency; (b) the costs to the agency in disclosing
adjudication materials in excess of FOIA’s requirements; (c) any offsetting benefits the agency
may realize in disclosing the same; (d) the privacy interests of individuals and entities that are the
subject of adjudication materials; and (e) any other relevant considerations, such as other legal
requirements or agency-specific adjudicatory practices.
The interests of the public and relevant stakeholders in gaining insight into the internal
processes of agencies should be construed broadly, and there should be a presumption in favor of
disclosure. In assessing these interests, agencies should consider the degree to which disclosing
adjudicatory records in excess of FOIA’s requirements would promote greater transparency and
public-stakeholder trust, as well as the likelihood that such disclosure would decrease the number
of FOIA requests the agency would otherwise receive.
Whether to disclose discrete decisions or supporting records may involve a generally
informal consideration of costs and benefits, measured in terms of time, money, or any other
realizable expense or benefit. On a more global level, in evaluating the costs and benefits of
maintaining comprehensive or near-comprehensive dockets of decisions and supporting materials,
each agency may wish to take into account several considerations, such as current and possible
future staffing needs, whether its website is managed internally or by an outside contractor, the
number of records generally issued and filed in its adjudicative proceedings, and the interests of
relevant stakeholders.
Agencies must of course comply with FOIA Exemption 6 and any other relevant privacy
laws and regulations. Whether a record can be sufficiently redacted such that the individual or
entity that is the subject of the material cannot be associated with the proceedings, while also
Recommendation 1 advises agencies to consider “other legal requirements” in determining which adjudicatory
materials to disclose.
220
See Memorandum on the Public Information Section of the APA, supra note 39, at 15.

41

April 10, 2017
shedding light into the internal processes and procedures of the agency, will factor into the decision
to disclose the record in redacted form or not. If this balance cannot be achieved, of course, the
record must not be disclosed.
Lastly, agencies may consider any other relevant factors in determining whether to disclose
adjudication materials beyond FOIA’s limited ambit. Such factors may include the nature of the
agency’s adjudicative proceedings and any additional, relevant governing legal requirements.
Recommendation 2. Agencies that adjudicate large volumes of cases that do not vary considerably
in terms of their factual contexts or the legal analyses employed in their dispositions should
consider disclosing materials from representative examples of cases on their websites.
Some adjudication schemes involve the resolution of large volumes of cases that do not
vary considerably in terms of their factual backgrounds or the legal analyses employed in their
dispositions. In such instances, disclosing all or nearly all decisions or supporting records may
potentially impose financial and other burdens on an agency while ultimately doing little to
increase transparency. Recall that SSA ALJs collectively issue hundreds of thousands of decisions
annually, the vast majority of which resolve claims for disability benefits. It is likely that a high
degree of factual and legal similarities exist among many of these cases, such that insight into
SSA’s disability laws and procedures would not be furthered by a policy of maximal or nearmaximal disclosure, but would instead merely impose additional expenses and other costs on the
agency. In such narrowly focused, mass adjudicative contexts, agencies should consider disclosing
online only those decisions and supporting adjudication materials that represent the various types
of factual scenarios and legal examinations associated with cases they adjudicate.
Recommendation 3. Agencies that choose to post all or nearly all decisions and supporting
materials filed in adjudicative proceedings should consider grouping such records together within
individual docket pages.
The websites surveyed that posted all or nearly all adjudication decisions and supporting
adjudication materials allowed users to view such materials together in individual docket pages.
The basic scheme did not appear to vary much across the different websites. Clicking on a
hyperlinked name of a case would direct the user to a page containing PDF copies of all or all
relevant orders, opinions, briefs, motions, pleadings, and other materials filed or issued in a case.221
Additional inclusions, such as service notations or other procedural or case-specific information,
helped provide a fuller picture of the case. By allowing users to easily view the materials filed
within each case, agencies enhance the value of disclosing adjudication materials from the
standpoint of transparency.

221

See, e.g., Figures 4, 5, and 6, supra.

42

April 10, 2017
Recommendation 4. Agencies should endeavor to ensure that visitors to their websites are able to
easily locate adjudication materials by displaying links to agency adjudication sections in easily
accessible locations on the website’s homepage, as well as by maintaining a search engine and a
site map or index, or both, on or locatable from the homepage.
The survey demonstrated that adjudication materials were easiest to access on websites that
displayed visible, descriptively-titled links to adjudication sections. Titles such as “Decisions,”
“Documents and Proceedings,” “Enforcement,” and “Case Information” specifically allude to
adjudication, notifying the user that adjudication materials may be but a click away. The location
of such a link is of course constrained by the four corners of the website’s homepage. Most
agencies display links to adjudication sections on the banner, although agencies like BVA and
CRB display them on the side.222 No matter where they are maintained, agencies should ensure
that their primary gateways to adjudication materials are easy to locate.
Additionally, search engines were found to be useful tools for locating adjudicatory
materials generally, as well as for locating specific materials provided that a user entered search
terms particular to an identifiable record. In this way, search engines are a helpful resource for
basic as well as more advanced website visitors.
The study also revealed that site maps and indexes were helpful in locating websites’
adjudication sections. Site maps, accessible from links on the homepage or located at the bottom
of the homepage, were more common with the websites surveyed. Indexes, although less common,
were equally effective in providing an easy pathway to adjudication materials. Whether an index
was organized by topic or alphabetically made no discernible difference as far as locating
adjudication materials was concerned. Therefore, agencies should consider maintaining one or
both of these tools on or locatable from their website’s homepage.
Recommendation 5. Agencies should endeavor to simplify the user’s search for adjudication
materials by offering relevant filtering and advanced search options in conjunction with their
websites’ main search engines that allow users to identify with greater detail the records or types
of records for which they are looking.
In order to simplify users’ searches for adjudicatory materials and to give advanced users
more options for narrowing and refining their searches, website search engines should offer
filtering and other advanced search options relevant to adjudication. General advanced search
options that, for example, allow users to search by specific words or phrases or by date, are useful,
and are likely offered by most agencies’ search engines. Adjudication-specific options, however,
allow for more efficient and productive searches. Agencies should therefore offer adjudicationspecific filtering and other advanced search options in order ease users’ access to adjudication
materials.
The kinds of adjudication-specific options offered would necessarily be dictated by the
agency’s programmatic and adjudicatory idiosyncrasies, the level of emphasis the agency places
on adjudication to create law and policy, and the size of the agency’s adjudication output. NLRB,
222

See Copyright Royalty Board, LIBRARY OF CONG. (last visited Jan. 19, 2017), https://www.loc.gov/crb/.

43

April 10, 2017
for instance, crafts policy almost entirely through adjudication. As a relatively large agency with
an extensive adjudication docket, the filtering options offered by its main search engine reflect its
adjudication-centric program. Users may search specifically for “case documents,” “cases” (which
brings up links to docket pages), or both. Additional filters allow users to narrow by the two types
of administrative cases NRLB adjudicates (unfair labor practice cases and “representation” cases),
as well as by type of document (e.g., Board decisions, ALJ decisions) and status (open or
closed).223
FMSHRC engages solely in adjudication to achieve its mission. The available
adjudication-specific filtering options offered by its main search engine reflect its focused
jurisdiction, as well as the fact that it does not disclose supporting adjudicatory materials. As
explained above in Part IV.B, upon entering a search in the website’s search engine, users
encounter four filtering options. Two of these options are adjudication-specific—“Commission
Decisions” and “ALJ Decisions”—allowing the user to narrow his search broadly by type of
document.224 Agencies with similar disclosure practices and singular foci should consider offering
similar options.
Many agencies engage, to varying degrees, in various policymaking activities in addition
to adjudication. These agencies may be unable to offer search engines with adjudication-specific
options that are as complex as NLRB’s or as simple as FMSHRC’s. FTC’s rules, advisory
opinions, guidance documents, blog posts, and press releases, for instance, are repositories of
important information that should not be sidelined in favor of adjudication materials. The agency
acknowledges this by offering filtering options that are relevant to all of its important activities,
including adjudication.225
Recommendation 6. Agencies should consider offering general and advanced search and filtering
options within the sections of their websites that disclose adjudication materials.
The study revealed a variety of methods by which visitors are able to search for materials
within agencies’ adjudication sections. (Such methods are in contrast to the search engines located
on websites’ homepages and related features that are the subject of Recommendation 5.) Most
websites allowed users to filter or sort decisions by date or name or some other similar category,
and most also offered a search engine within their adjudication section. As with advanced search
options offered in conjunction with a website’s main search engine (see Recommendation 5), the
types of search options agencies are able to offer within their specific adjudication sections are
dependent on many factors unique to each agency. That said, in addition to including general
search options and a search engine in their websites’ adjudication sections, agencies should
consider offering adjudication-specific options, too, such as those that allow users to sort, narrow,
or filter by record type (e.g., orders, opinions, briefs, motions), action or case type, docket number,
and the parties.

See Search, NAT’L LABOR RELAT. BD. (last visited Jan. 19, 2017), https://www.nlrb.gov/search/all/Search.
See Search Results, FED. MINE SAFETY & HEALTH REV. COMM’N (last visited Jan. 19, 2017),
https://search.usa.gov/search?query=&submit.x=12&submit.y=17&submit=Send&affiliate=fmshrc.
225
See Search FTC, FED. TRADE COMM’N (last visited Jan. 20, 2017), https://www.ftc.gov/search/site.
223
224

44

April 10, 2017
FMSHRC offers a helpful model, although other agencies may require more or fewer
options consistent with their needs and constraints. Recall that within FMSHRC’s “Review
Commission Decision” page, users may use the search engine specific to that page to search within
the decisional library. Additionally, more sophisticated or knowledgeable users may utilize
optional filters beneath the search engine to narrow their search by type of record (order or
decision), the parties, docket number, and start and end dates.226 These simple yet effective
features allow users to locate materials with specificity, an invaluable asset when one is faced with
a nearly comprehensive repository of decisions going back several decades.
FTC’s adjudication section offered more numerous and specific search options to match
the agency’s large adjudication docket. Recall that there was a search engine in FTC’s “Cases and
Proceedings” page specific to that page. Additionally, users were able to filter searches by
“Mission” (“Competition” or “Consumer Protection”), “Type of Action” (federal or
administrative), and “Enforcement Type” (e.g., administrative complaints or civil penalties).
Users were further able to arrange cases by “released date” or “updated date,” 227 and an
“Advanced Search” option allowed for more sophisticated filtering, such as by topic, matter
number, and industry.228

See Review Commission Decisions, Decisions, FED. MINE SAFETY & HEALTH REV. COMM’N (last visited Jan. 20,
2017), https://www.fmshrc.gov/decisions/commission.
227
Id.
228
Cases and Proceedings: Advanced Search, Cases and Proceedings, FED. TRADE COMM’N (last visited Dec. 31,
2016), https://www.ftc.gov/enforcement/cases-proceedings/advanced-search.
226

45

APPENDIX
Reprinted below is a copy of the research questions each researcher used to collect
information for the survey. Note that not all of the questions were ultimately considered in the
final analysis. The framework was inspired by that developed by Stuart Shapiro and Cary
Coglianese in their 2007 study, First Generation E-Rulemaking: An Assessment of Regulatory
Agency Websites (Univ. of Pa. Law Sch. Pub. Law & Legal Theory Research Paper Series,
Paper No. 07-15, 2007), available at http://papers.ssrn.com/abstract=980247.

A-1

April 10, 2017
Research Questions
Agency:
Website address:
Researcher:
Date:
I.

Is the website easy to navigate?
A. General Navigation Information: *
1. Is there a search engine on the website’s home page? Does it direct the user to
adjudication materials? Is it helpful?
2. Is there a help function or FAQ page on the website? Does it direct the user to
adjudication materials? Is it helpful?
3. Is there a site map or index on the home page? Does it direct the user to adjudication
materials? Is it helpful?
4. Are there other language options (which languages?) or disability friendly features?
B. Specific Adjudication Sections:
1. Is there a specific section(s) pertaining to agency adjudications? How does one access
it? What is it called?
2. How are adjudication documents organized?
3. How does one search for documents (e.g., search engine, docket lists, etc.)?
4. What format(s) are the documents in (e.g., .pdf, .txt, .doc)?
5. Are any documents listed inaccessible?
6. Is there a specific “FOIA” or related “open government” section that contains
adjudicatory materials? Is it the same as the main adjudication section(s)?

II.

What types of adjudicatory materials and information are located on the website?
A. What types of orders and opinions (including consent decrees/settlements) are on the
website? Be specific, and please indicate the title of the author of the order/opinion (i.e.,
the Board/Commission/Administrative Law Judge/Administrative Judge, etc.).
A-2

April 10, 2017

B. What types of supporting administrative litigation documents (e.g., pleadings, briefs,
motions) are on the website? [N.B.: This does not include documents issued by an
adjudicator.]
C. What other types of documents or information are there (e.g., press releases or case
summaries)?
D. Are there materials and/or information pertaining to litigation in federal court, including
decisions? What types are they?

A-3