REPORT FOR THE
A DMINISTRATIVE C ONFERENCE OF THE U NITED S TATES

PUBLIC ACCESS TO AGENCY
ADJUDICATIVE PROCEEDINGS
Jeremy Graboyes
Administrative Conference of the United States
&
Mark Thomson
Administrative Conference of the United States

This report was prepared for the consideration of the Administrative Conference of the United States. It does not
necessarily reflect the views of the Conference (including its Council, committees, or members).
Recommended Citation
Jeremy Graboyes & Mark Thomson, Public Access to Agency Adjudicative Proceedings (Nov. 22, 2021) (report to
the Admin. Conf. of the U.S.).

PUBLIC ACCESS TO AGENCY ADJUDICATIVE PROCEEDINGS
Jeremy Graboyes1 & Mark Thomson**
CONTENTS

1

Introduction

3

I. Openness of Agency Adjudicative Proceedings
A. Policy Background
B. Legal Background
1. Constitutional Principles
2. Common-Law Principles
3. Statutory Requirements
a. Freedom of Information Act
b. Government in the Sunshine Act
c. Privacy Act
4. Agency Rules and Policies
C. Establishing a General Presumption
1. Procedural Purpose of the Proceeding
a. Evidentiary Hearings
b. Investigatory Proceedings
c. Settlement Conferences and ADR Proceedings
d. Prehearing, Scheduling, and Other Informal Conferences
e. Appellate Presentations
2. Nature of Affected Interests and Information Involved
3. Adversarial or Non-Adversarial Features of Agency Processes
4. Relationship Between the Parties
a. Agency Actions Against Private Parties
b. Agency Decisions on Private Parties’ Applications
c. Adjudication Between Private Parties
5. Degree of Public Interest
6. Role of Public Input in Agency Decisionmaking
D. Departing from a General Presumption
1. Closing Presumptively Open Proceedings
2. Opening Presumptively Closed Proceedings
3. Procedures for Departing from a General Presumption

6
6
9
9
12
13
14
14
16
16
17
17
18
18
19
19
20
21
25
25
25
27
27
28
29
29
29
30
31

II. Operationalizing Public Access to Open Proceedings
A. Public Notice of Open Proceedings
1. Location of the Notice
2. Content of the Notice
3. Timing of the Notice
B. Location and Form of Public Attendance: In-Person or Remote

31
33
33
35
36
37

Principal Deputy Research Director, Administrative Conference of the United States.
Deputy Research Director, Administrative Conference of the United States.

11

2

1. Accessibility for Public Attendees
2. Scalability
3. Cameras in the Courtroom: Effects on Transparency, Privacy,
and Participants’ Behavior
4. Impact on Adjudicators’ Ability to Regulate Proceedings
C. Access to Recordings and Transcripts of Open Proceedings
D. Availability of Agency Policies on Public Access to Adjudicative
Proceedings

38
39
39
44
46
48

INTRODUCTION
Open legal proceedings—that is, legal proceedings open to public observation—have, for
centuries, been an essential indicator of fair process. Properly implemented, open proceedings
have the potential to promote the interests of private parties, the government, and the public.
Legislatures, courts, scholars, the organized bar, the press, and others have long fostered a
culture, a legal regime, and even an architecture that generally encourages open judicial
proceedings.2
But open proceedings may not be an unmitigated good in all circumstances. Besides
imposing administrative costs, openness can result in the public disclosure of sensitive
information. It can also allow into the courtroom those who would intimidate parties and
witnesses and affect their testimony. There is a long tradition, for example, of closing judicial
proceedings involving minors.3
Openness is also not a self-executing norm. Courts routinely consider how they provide
access to proceedings that must, as a matter of law, be open to public observation. There is
perpetual debate, for example, about whether media professionals should be able to record or
broadcast judicial proceedings. The Judicial Conference has debated the issue at least a halfdozen times, and legislative proposals to expand remote access are commonplace. (Several bills
are currently pending in Congress.4) Courtroom closures during the COVID-19 pandemic
ultimately led many courts to begin broadcasting their own proceedings. Even the Supreme
Court began streaming, and allowed media outlets to broadcast, live audio of oral arguments.5
Settling on a sound policy for determining which judicial proceedings should be open to
the public, and how they are made open, requires a careful balancing of different, and sometimes
conflicting, public and private interests.

2

See generally JUDITH RESNIK & DENNIS CURTIS, REPRESENTING JUSTICE: INVENTION, CONTROVERSY, AND RIGHTS
IN CITY-STATES AND DEMOCRATIC COURTROOMS (2011).
3
See generally Emily Bazelon, Public Access to Juvenile and Family Court: Should the Courtroom Doors Be Open
or Closed?, 18 YALE LAW & POLICY REV. 155 (1999).
4
See, e.g., Cameras in the Courtroom Act, S. 807, 117th Cong. (2021); Cameras in the Coutroom Act, H.R. 4257,
117th Cong. (2021); Sunshine in the Courtroom Act, S. 818, 117th Cong. (2021).
5
See Robert Barnes, Supreme Court takes modest but historic step with teleconference hearings, WASH. POST (May
4, 2020), https://www.washingtonpost.com/politics/courts_law/supreme-court-teleconference-hearingsbookingcom/2020/05/03/f5902bd6-8d76-11ea-a9c0-73b93422d691_story.html.

3

Despite the different institutional context, similar principles may apply in federal agency
adjudication. Courts have sometimes found a First Amendment right of public access to some
administrative proceedings, just as they have for judicial proceedings.6 Congress has explicitly
required “public hearings” in some adjudications, especially those affecting the public interest.7
Multi-member agencies, most of which adjudicate at least some cases, are subject to open
meeting laws.8 And although the formal-hearing provisions of the Administrative Procedure Act
(APA) do not establish an explicit presumption of openness, it has been said that the “very
concept of a hearing comparable to a judicial proceeding,” embedded in the APA’s formalhearing provisions, “entails norms of openness.”9 Agencies have adopted their own rules,
policies, and practices in the interstices between constitutional principles and statutory mandates.
Part II of this report addresses in the administrative context what Judith Resnik in the
judicial context calls “doctrinal openness”—that is, the judicial doctrines, congressional
mandates, agency rules, and policy considerations that determine which adjudicative proceedings
should be open to public observation and which should be closed, in whole or in part.10
Just as in the courts, openness in administrative adjudication is not a self-executing norm.
Agencies must determine, among other things, whether and how to provide advance public
notice of adjudicative proceedings, facilitate in-person or remote access, disclose recordings and
transcripts, and regulate the conduct of media and other public attendees.
ACUS tackled some of these questions in its earliest years. Recommendation 68-1,
Adequate Hearing Facilities, recommended that the General Services Administration develop “a
set of four hearing room classifications” that could accommodate between 20 and more than 100
attendees, including spectators, according to agencies’ needs.11 Recommendation 71-6, Public
Participation in Administrative Hearings, set forth best practices for supplying public notice and
defraying the costs of public engagement in on-the-record adjudications and other proceedings.12
And Recommendation 72-1, Broadcast of Agency Proceedings, offered principles to help
agencies decide whether to encourage or exclude audiovisual coverage of their proceedings,
including in adjudications.13
Of course, the world looks different now than it did five decades ago. Technological
advances have changed administrative processes and the ways in which agencies and the public
communicate. Parties, representatives, and witnesses increasingly participate by video or
6

See infra Part II.A.1.
See, e.g., 7 U.S.C. § 136d(d); 15 U.S.C. § 717t-1(b).
8
See 5 U.S.C. § 552b.
9
Am. Bar. Ass’n, Sec. of Admin. Law & Reg. Practice, A Blackletter Statement of Federal Administrative Law
(approved as amended Feb. 5, 2012).
10
Cf. Judith Resnik, A2J/A2K: Access to Justice, Access to Knowledge, and Economic Inequalities in Open Courts
and Arbitrations, 109 N.C. L. REV. 605, 606 (2018).
11
Admin. Conf. of the U.S., Recommendation 68-1, Adequate Hearing Facilities, 1 ACUS 9 (1968).
12
Admin. Conf. of the U.S., Recommendation 71-6, Public Participation in Administrative Hearings, 38 Fed. Reg.
19789 (July 23, 1973).
13
Admin. Conf. of the U.S., Recommendation 72-1, Broadcast of Agency Proceedings, 38 Fed. Reg. 19791 (July
23, 1973).
7

4

telephone.14 As ACUS recently examined, agencies now rely heavily on virtual proceedings,
which they may conduct entirely online outside a physical space, such a hearing room, that could
accommodate public spectators.15 The expansion of e-government, and the rapid deployment of
remote processes especially during the COVID-19 pandemic, have almost certainly altered
public expectations of openness.
Reflecting the sheer diversity of federal programs, agencies have developed an array of
practices to facilitate public access to open proceedings. These practices can meaningfully affect
the extent to which interested persons can, as a practical matter, observe proceedings that are
ostensibly open. Agency practices for facilitating public access can also shape public perceptions
about the transparency and fairness of agency decisionmaking. Part III addresses “functional
openness”—that is, the specific practices by which agencies operationalize openness.
Before proceeding to discussions of doctrinal and functional openness, we should define
what we mean by “public access to agency adjudicative proceedings.”
•

Adjudication. “Adjudication” under the APA encompasses all agency administrative
processes that result in any final action that is not a rule. This is a broad category that
includes decisions that directly resolve the rights, interests, or obligations of nonagency parties, as well as “policy implementation” decisions, which do not.16
(Examples of policy implementation decisions include the siting of a highway,
closing a post office, conducting an environmental assessment, managing public
facilities, and designating national monuments.17) This report uses “adjudication” to
refer only to processes involving parties beyond the adjudicating agency. Although
the recommended best practices in Part IV are limited to proceedings in these
adjudications, agencies may also wish to consider their applicability to policy
implementation decisions.

•

Proceedings. Adjudicative processes can involve different “proceedings,” by which
we mean processes for the oral exchange of evidence or other information related to
an adjudication among agency decisionmakers, their staff, and one or more parties.
Proceedings go by many different names: formal hearings, evidentiary hearings, oral
hearings, informal hearings, due process hearings, prehearing conferences, scheduling
conferences, settlement conferences, informal conferences, fact-finding hearings,
investigative or investigatory hearings, oral arguments, etc.18

14

See Admin. Conf. of the U.S., Recommendation 2014-7, Best Practices for Using Video Teleconferencing for
Hearings, 79 Fed. Reg. 75114 (Dec. 17, 2014); Admin. Conf. of the U.S, Recommendation 2011-4, Agency Use of
Video Hearings: Best Practices and Possibilities for Expansion, 76 Fed. Reg. 48795 (Aug. 9, 2011).
15
Admin. Conf. of the U.S., Recommendation 2021-4, Virtual Hearings in Agency Adjudication, 86 Fed. Reg.
36083 (July 8, 2021).
16
MICHAEL ASIMOW, ADMIN. CONF. OF THE U.S., FEDERAL ADMINISTRATIVE ADJUDICATION OUTSIDE THE
ADMINISTRATIVE PROCEDURE ACT 8–9 (2019).
17
Id. at 9–10.
18
See Recommendation 2021-4, supra note 15; Recommendation 2014-7, supra note 14; Recommendation 2011-4,
supra note 14.

5

•

Public Access. As used in this report, “public access” refers to the opportunity for
individuals to observe proceedings conducted in adjudications in which they are not
participants. Public access can be in-person or remote, live or pre-recorded, and
available by default or upon request.

This report is based primarily on a review of judicial decisions; federal statutes; rules and
policies available in the Code of Federal Regulations and Federal Register; publicly available
notices, orders, and decisions issued in the course of agency adjudication; information that
agencies have made publicly available on their websites; news media and blogs; and the relevant
legal scholarship. We undertook a comprehensive search for materials relating to public access in
federal agencies, searching for key terms in the U.S. Code, the Code of Federal Regulations and
Federal Register, relevant Westlaw databases (including congressional, executive-branch, and
judicial materials), the websites of the majority of agencies that adjudicate cases, news
aggregator services, and general search engines. We also conducted interviews between August
and October 2021 with adjudicators and other attorneys from a targeted sample of federal
agencies, as well as representatives from public interest groups. Some practitioner groups were
also contacted for interviews.
I. OPENNESS OF AGENCY ADJUDICATIVE PROCEEDINGS
This Part addresses the extent to which agency adjudicative proceedings are open to
public observation as a matter of law and policy—the administrative corollary of what Judith
Resnik in the judicial context calls “doctrinal openness.”19 Even as a doctrinal matter, openness
to agency adjudicative proceedings is far from uniform. Practices can vary widely according to
the type of proceeding, the federal program, and the agency. Some kinds of proceedings are
always public; others are only rarely, if ever, open to spectators.
We begin in Subpart A by describing the policies and principles that have traditionally
informed the regulation of public access to adjudicative proceedings. In Subpart B, we discuss
how various institutional actors—the courts, Congress, and executive-branch officials—have
regulated public access through the application of constitutional and common-law principles,
federal statutes, and agency rules and policies. As discussed below, we find that when Congress
and agencies regulate public access to a specific type of agency adjudicative proceedings, they
often establish a general presumption that proceedings of that type are open or closed to public
observation along with circumstances in which agency officials may or must depart from that
presumption in specific cases.20 Subpart C analyzes general presumptions governing public
access set forth in federal statutes and agency rules and policies. Subpart D analyzes
circumstances for departing from general presumptions and processes for doing so.
A.

Policy Background

The Star Chamber existed in England from the late fifteenth century until its abolition by
Parliament in 1641. Among its many attributes, the Star Chamber conducted secret trials, or is at
19
20

See supra note 10.
See infra note 102.

6

least remembered as having operated in private.21 Accurately or not,22 the Star Chamber came to
symbolize a “disregard of basic individual rights”23 and a “menace to liberty.”24 Open judicial
proceedings, especially in criminal trials, became an important tool of justice and democracy.
Similar concerns have shaped administrative processes. Surveying federal agencies’
practices in 1941, the Attorney General’s Committee on Administrative Procedure found that
hearings, at least, tended to be public. “This is as it should be,” the Committee concluded. “[T]he
practice is an effective guarantee against arbitrary methods in the conduct of hearings. Star
chamber methods cannot thrive where hearings are open to the scrutiny of all.”25 More recently,
ACUS has twice recommended, at a high level, that agencies should presumptively open
evidentiary hearings to public observation except in limited circumstances.26
Open proceedings are variously recognized as benefitting the interests of private parties
and the government, as well as the public interest. Openness is thought to bring all relevant
evidence to light and thereby test its truthfulness.27 Open proceedings are also said to prevent the
arbitrary exercise of state authority by “keep[ing] the judge himself, while trying, under trial.”28
To quote Justice Brandeis’s famous aphorism, “sunlight is said to be the best of disinfectants.”29
At a personal level, openness permits family, friends, and advocates to accompany parties
and provide emotional support. The presence of parties’ support networks may improve their
engagement during complex legal processes, potentially leading to more favorable outcomes and
better perceptions of procedural and substantive fairness.30
Open proceedings also facilitate public participation, which can be an important part of
some processes for agency adjudication. Amicus participation, for example, allows interested
persons to weigh in on cases involving the development of important policy or legal principles.
A recent ACUS recommendation identified criteria that may favor amicus participation.31 As
ACUS has also recognized, public participation can be a best practice in declaratory proceedings
involving the application of legal principles to proposed actions.32 Intervention similarly invites
non-parties to materially participate in cases whose outcomes may affect them. Indeed, one of
ACUS’s earlier recommendations—Recommendation 71-6, Public Participation in
21

In re Oliver, 333 U.S. 257, 266 (1948).
See generally Thomas G. Barnes, Star Chamber Mythology, 5 AM. J. LEGAL HIST. 1 (1961).
23
Faretta v. California, 422 U.S. 806, 821–22 (1975).
24
Oliver, 333 U.S. at 268.
25
FINAL REPORT OF THE ATTORNEY GENERAL’S COMMITTEE ON ADMINISTRATIVE PROCEDURE 68 (1941)
[hereinafter FINAL REPORT OF THE ATTORNEY GENERAL’S COMMITTEE].
26
Recommendation 2021-4, supra note 15, ¶ 3,; Admin. Conf. of the U.S., Recommendation 2016-4, Evidentiary
Hearings Not Required by the Administrative Procedure Act, ¶ 18, 81 Fed. Reg. 94314, 94316 (Dec. 23, 2016).
27
In re Oliver, 333 U.S. 257, 270 n.24 (1948).
28
1 J. BENTHAM, RATIONALE OF JUDICIAL EVIDENCE 522, 523 (1827).
29
LOUIS D. BRANDEIS, OTHER PEOPLE’S MONEY AND HOW THE BANKERS USE IT 92 (1914).
30
Ingrid V. Eagly, Remote Adjudication in Immigration, 109 N.W. U. L. REV. 933, 997–1000 (2015).
31
Admin Conf. of the U.S., Recommendation 2020-3, Agency Appellate Systems, ¶ 13, 86 Fed. Reg. 6618 (Jan. 22,
2021).
32
Admin. Conf. of the U.S., Recommendation 2015-3, Declaratory Orders, ¶ 9, 80 Fed. Reg. 78,161 (Dec. 16,
2015).
22

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Administrative Hearings—explicitly encouraged to adopt certain best practices for public
participation in some on-the-record adjudications.33 And some adjudicative processes include
opportunities for members of the public to submit written comments, which can be an important
source for information about public utilities, polluters, and other entities whose activities affect
the general public. Public participation—through intervention, submission of written comments,
and other means—can be an important means of promoting environmental justice and improving
access to justice for underserved communities.34
More broadly, open proceedings can help legitimate government processes, allowing
scholars and journalists to gain a better understanding of how public institutions function,
facilitating public oversight of agency operations and performances, and fostering public
confidence in government institutions and processes.35 Open proceedings are thought to help
democratize justice by forging “important connections between members of the public and the
very institutions that make profound judgments about their communities”36 and, in some cases,
by offering “significant community therapeutic value.”37
But open proceedings are not costless. Because they result in the disclosure of personal
information—medical records in applications for worker’s compensation, financial records in tax
disputes, stories of past and potential future abuse and trauma in asylum cases—they can be
problematic from a privacy perspective.38 Publicity surrounding investigations can shed light on
as-yet unadjudicated allegations of misconduct or noncompliance, resulting in premature and
potentially unfair reputational and other harms.39 Just as open proceedings allow parties’ friends
and family to attend and support them, they also invite in people whose presence would threaten,
intimidate, or distract them.
And although open proceedings can promote truthfulness, they can also make candor and
consensus more difficult and result in proceedings that are protracted, more costly, and less
satisfying. Alternative dispute resolution (ADR) developed to avoid these qualities through
simplified, off-the-record proceedings, closed sessions, and strong guarantees of privacy and
confidentiality.40 ACUS has long encouraged the targeted use of ADR in administrative

33

Recommendation 71-6, supra note 12.
See Exec. Order. No. 13985, Advancing Racial Equity and Support for Underserved Communities Through the
Federal Government, 86 Fed. Reg. 7009 (Jan. 25, 2021).
35
In re Oliver, 333 U.S. 257, 270 n.24 (1948).
36
Eagly, supra note 30, at 997; see generally RESNIK & CURTIS, supra note 1.
37
Richmond Newspapers v. Va., 448 U.S. 555, 570 (1980).
38
JERRY MASHAW, BUREAUCRATIC JUSTICE 92 (1983).
39
See Admin. Conf. of the U.S., Recommendation 73-1, Adverse Agency Publicity, 38 Fed. Reg. 16839 (June 27,
1973). See also Nathan Cortez, Adverse Publicity by Administrative Agencies in the Internet Era, 2011 B.Y.U. L.
REV. 1371 (2011); Ernest Gellhorn, Adverse Publicity by Administrative Agencies, 86 HARV. L. REV. 1380; The
Distinction Between Informing and Prosecutorial Investigations: A Functional Justification for “Star Chamber”
Proceedings, 72 YALE L.J. 1227 (1963).
40
See Admin. Conf. of the U.S., Recommendation 88-11, Encouraging Settlement by Protecting Mediator
Confidentiality, 54 Fed. Reg. 5212 (Feb. 2, 1989); Admin. Conf. of the U.S., Recommendation 86-3, Agencies’ Use
of Alternative Means of Dispute Resolution, 51 Fed. Reg. 25643 (July 16, 1986).
34

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processes41 and is currently studying its use in agency adjudication.42 For many of the same
reasons, agencies also have a long history of using informal procedures to make initial decisions
and resolve disputes as efficiently as possible, saving trial-like processes for disputes that cannot
be resolved by less formal means.43 Agencies simply could not function if the public had a right
to access every initial meeting with a claims representative, interview, inspection, examination,
or informal conference.
Like courts, Congress and federal agencies must undertake a complex balancing of
individual, governmental, and public interests when they devise policies for determining which
agency adjudicative proceedings should be open to public observation and which should not.
B.

Legal Background

Congress, agencies, and the courts have all addressed public access to agency
adjudicative proceedings at one time or another. This subpart provides an overview of the main
sources of law governing which proceedings are open to public observation and which are not:
(1) the Constitution, (2) the common law, (3) federal statutes, and (4) executive-branch rules.
1.

Constitutional Principles

A long line of cases establishes that the public has a qualified constitutional right to
access at least some agency adjudicative proceedings. Early decisions in this vein grounded the
right in due process.44 More recently, however, courts have held that the right emanates from the
First Amendment.45
To determine whether the First Amendment requires public access to a particular type of
adjudicative proceeding, courts usually apply what is sometimes called the Press-Enterprise

41

See, e.g., Recommendation 2016-4, supra note 26, ¶ 12; Admin. Conf. of the U.S., Recommendation 2014-1,
Resolving FOIA Disputes Through Targeted ADR Strategies, 79 Fed. Reg. 35988 (June 25, 2014); Admin. Conf. of
the U.S., Recommendation 89-2, Contracting Officers’ Management of Disputes, 54 Fed. Reg. 28967 (July 10,
1989); Admin. Conf. of the U.S., Recommendation 87-5, Arbitration in Federal Programs, 52 Fed. Reg. 23635
(June 24, 1987); Admin. Conf. of the U.S., Recommendation 86-7, Case Management as a Tool for Improving
Agency Adjudication, ¶ 6, 51 Fed. Reg. 46989, 46990 (Dec. 30, 1986); Recommendation 86-3, supra note 40.
42
Alternative Dispute Resolution in Agency Adjudication, ADMIN. CONF. OF THE U.S., https://www.acus.gov/
research-projects/alternative-dispute-resolution-agency-adjudication (last visited Oct. 12, 2021).
43
See Emily S. Bremer, The Rediscovered Stages of Agency Adjudication, 99 WASH. U. L. REV. __ (forthcoming
2021) (manuscript at 28–29), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3793949.
44
See, e.g., Fitzgerald v. Hampton, 467 F.2d 755, 766 (D.C. Cir. 1972) (holding “that due process requires that [a
Civil Service Commission] hearing be open to the press and public”); Pechter v. Lyons, 441 F. Supp. 115, 119
(S.D.N.Y. 1977) (“That an open hearing is a fundamental principle of fair play inherent in our judicial process
cannot be seriously challenged.”) (parentheses and quotation marks omitted).
45
See, e.g., N.Y. Civil Liberties Union v. N.Y. City Transit Auth., 684 F.3d 286, 305 (2d Cir. 2012) (finding that
agency’s “access policy violate[d] the public’s First Amendment right of access to government proceedings”);
Detroit Free Press v. Ashcroft, 303 F.3d 681, 700 (6th Cir. 2002) (concluding “that there is a First Amendment right
of access to deportation proceedings”); Whiteland Woods, L.P. v. Twp. of W. Whiteland, 193 F.3d 177, 181 (3rd
Cir. 1999) (holding that “the Planning Commission meetings are precisely the type of public proceeding to which
the First Amendment guarantees a public right of access”).

9

framework.46 Under that framework, courts first determine whether there is a First Amendment
right to access the proceedings in question. Courts make that determination by applying the twopart “experience and logic” test, asking: (1) “whether the place and process have historically
been open to the press and general public,” and (2) “whether public access plays a significant
positive role in the functioning of the particular process in question.”47
Different courts apply the “experience and logic” test in different ways. For example,
some courts require something close to an unbroken history of openness to satisfy the
“experience” prong, whereas others deem the prong satisfied so long as there is a general policy
of openness—even if it has been subject to occasional exceptions.48 Different courts also look to
different factors when applying the “logic” prong.49 Courts don’t even agree about whether the
experience and logic prongs must both be satisfied for the presumptive right of public access to
attach, or whether a disjunctive approach is appropriate.50 These types of differences in applying
the “experience and logic” test can lead to divergent holdings in similar cases. In 2002, for
instance, the Third and Sixth Circuits agreed that the Press-Enterprise test was the right
framework for evaluating challenges to an order restricting the public’s access to deportation
hearings but reached opposite conclusions about whether the order at issue violated the First
Amendment.51
“Even when the experience and logic test is satisfied[,] the public’s First Amendment
right of access establishes only a strong presumption of openness,” and so, under the second part
of the Press-Enterprise test, “the public still can be denied access if closure is necessitated by a
46

The Press-Enterprise framework emerged from a series of decisions about public access to court proceedings in
criminal cases. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 55 (1980); Globe Newspaper Co. v. Superior
Court, 457 U.S. 596 (1982); Press Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) (Press-Enterprise I);
Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) (Press-Enterprise II). When a plaintiff seeks access to an
agency proceeding that bears no clear resemblance to such judicial proceedings, courts will sometimes decline to
apply the Press-Enterprise framework on the ground that the First Amendment right of access does not extend to
such proceedings. See, e.g., Ctr. for Nat. Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 934 (D.C. Cir. 2003)
(“The narrow First Amendment right of access to information recognized in Richmond Newspapers does not extend
to non-judicial documents that are not part of a criminal trial, such as the investigatory documents at issue here.”);
Smith v. Plati, 258 F.3d 1167, 1178 n.10 (10th Cir. 2001) (“Because Smith’s claims do not involve a claim of denied
coverage of a criminal trial in particular, or any trial proceeding in general, we do not find [the Press-Enterprise line
of] cases particularly relevant.”). But see Leigh v. Salazar, 677 F.3d 892 (9th Cir. 2012) (applying the PressEnterprise framework to ascertain whether the First Amendment required that the public have access to a Bureau of
Land Management horse roundup).
47
Press-Enterprise II, 478 U.S. at 8–9.
48
Compare, e.g., N. Jersey Media Grp., Inc. v. Ashcroft, 308 F.3d 198, 212–13 (3rd Cir. 2002) (suggesting that
something comparable to the “‘unbroken, uncontradicted history’ of public access to criminal trials in Anglo
American law” is required under the “experience” prong), with Detroit Free Press, 303 F.3d at 701 (finding the
“experience” prong satisfied with respect to deportation proceedings because, “[a]lthough exceptions may have been
allowed, the general policy has been one of openness”).
49
Compare, e.g., Whiteland Woods, 193 F.3d at 181 (identifying “six factors pertinent to the application of the
[‘logic’] prong”), with United States v. Gonzales, 150 F.3d 1246, 1259–61 (10th Cir. 1998) (looking to a different
set of considerations in applying the “logic” prong).
50
See United States v. Cohen, 366 F. Supp. 3d 612, 633 n.9 (S.D.N.Y. 2019) (collecting and summarizing cases).
51
Compare Detroit Free Press, 303 F.3d at 711 (holding that the public has a First Amendment right to access
deportation proceedings), with N. Jersey Media Grp. 308 F.3d at 221 (holding that the public has no First
Amendment right to access deportation proceedings).

10

compelling governmental interest, and is narrowly tailored to serve that interest.”52 But that is a
high bar,53 surmountable only if “specific, on the record findings are made demonstrating that
closure is essential to preserve higher values and is narrowly tailored to serve that interest.”54
Among the few “higher values” courts have recognized as potentially justifying closure are the
need to preserve the defendant’s right to a fair trial,55 protecting minor victims of sex crimes
from trauma and embarrassment,56 and the “fair administration of justice” generally.57 Even
when there exists a compelling interest in closing a proceeding, moreover, closures must be
narrowly tailored to serve that interest.58
When it applies, the First Amendment right of access requires that the public be able to
observe the proceeding at issue. An agency may not satisfy its constitutional obligations by
providing the public with a transcript of the proceeding,59 unless, “applying the constitutionally
mandated balancing test, [it is] found that concurrent access must be denied,” in which case “the
provision of a transcript may well be the best available substitute.”60
At the same time, the First Amendment right of access does not foreclose agencies from
imposing reasonable time-place-and-manner restrictions on public attendance at agency
proceedings.61 The most common of such restrictions involve limitations on recording
proceedings,62 which have historically been upheld on the ground that they promote the parties’
and tribunal’s interests in a fair hearing.63
52

Times Mirror Co. v. United States, 873 F.2d 1210, 1211 n1 (9th Cir. 1989) (quoting Press-Enterprise I, 464 U.S.
at 509–10).
53
See Press-Enterprise I, 464 U.S. at 509 (“Closed proceedings, although not absolutely precluded, must be rare and
only for cause shown that outweighs the value of openness.”).
54
Id. (quotation marks omitted); see also, e.g., United States v. Doe, 870 F.3d 991, 998 (9th Cir. 2017) (elaborating
on the Press-Enterprise framework with a three-part test for determining whether, notwithstanding the existence of a
qualified First Amendment right of access, closure is nevertheless appropriate).
55
See Estes v. Texas, 381 U.S. 532 (1965) (holding that defendant was deprived of his right to due process by the
televising of his notorious, heavily publicized, and highly sensational criminal trial).
56
Globe Newspaper, 457 U.S. at 607.
57
Richmond Newspapers, 448 U.S. at 581 n.18.
58
See Press-Enterprise II, 478 U.S. at 13–14. Thus, for instance, the Supreme Court invalidated “a rule of
mandatory closure respecting the testimony of minor sex victims” during trials of specified sexual offenses because,
even though the State’s asserted interest in “safeguarding the physical and psychological well-being of minors” was
“compelling,” it did not “justify a mandatory closure rule,” since it was “clear that the circumstances of the
particular case may affect the significance of the interest.” See Globe Newspaper, 457 U.S. at 607–08, 611.
59
See ABC, Inc. v. Stewart, 360 F.3d 90, 99–100 (2d Cir. 2004) (Katzmann, J.); United States v. Antar, 38 F.3d
1348, 1360 n.13 (3d Cir. 1994).
60
ABC, Inc., 360 F.3d at 100.
61
See United States v. Yonkers Bd. of Educ., 747 F.2d 111, 113 (2nd Cir. 1984) (“[T]he First Amendment right of
access is limited to physical presence at trials.”).
62
See Rice v. Kempker, 374 F.3d 675, 679 (8th Cir. 2004) (“[C]ourts have universally found that restrictions on
videotaping and cameras do not implicate the First Amendment guarantee of public access.”); Whiteland Woods,
L.P. v. Twp. of W. Whiteland, 193 F.3d 177, 184 (3rd Cir. 1999) (public has no right to videotape planning
commission meetings where there were “alternative means of compiling a comprehensive record” of the meetings).
63
See United States v. Hastings, 695 F.2d 1278, 1283 (11th Cir. 1983) (interests supporting media ban in a criminal
trial could include defendant’s interests in a fair trial, as well as the court’s interest in ensuring the accuracy of the
trial’s truth-seeking function); see generally Estes, 381 U.S. at 544–51 (noting how television could impair the truthfinding function of the criminal trial, particularly in its probable adverse impact on jurors, witnesses, and other trial

11

2.

Common-Law Principles

It’s well established that there’s a common law right to access judicial proceedings and
materials.64 It’s also well established that this common-law right extends to accessing materials
from legislative and executive bodies.65 What’s not clear—because courts have not directly
addressed it66—is whether and how far the common-law right to access judicial proceedings
extends to accessing proceedings of legislative and executive bodies.
What little commentary there is on the subject assumes that the common-law right of
access does not extend to agencies’ adjudicative proceedings,67 but there are colorable arguments
on both sides of that issue. Proponents of a public right of access to adjudicative proceedings
might point out, for example, that public policy has long favored public access to administrative
proceedings68 and that, “in administrative hearings, the rule of the ‘open’ forum is prevailing—if
not by statutory mandate, then by regulation or practice.”69 Those on the other side might
respond that the modern administrative state is “briskly evolving” and still too young to have
birthed a new, common-law right.70 They might add that a common-law right to attend agency

participants). This report takes no position on the continued validity of these longstanding justifications, their
applicability to most adjudicative proceedings, or their applicability to the types of virtual hearings that are
increasingly common at the agency level.
64
See, e.g., In re Cendant Corp., 260 F.3d 183, 192 (3d Cir. 2001) (recognizing “a common law public right of
access to judicial proceedings and records”).
65
See, e.g., Ctr. for Nat’l Sec. Studies, 331 F.3d at 936 (“[T]he common law right of access extends beyond judicial
records to the ‘public records’ of all three branches of government.”); Wash. Legal Found. v. U.S. Sentencing
Comm’n, 89 F.3d 897, 903–04 (D.C. Cir. 1996) (same holding); see also Schwartz v. U.S. Dep’t of Justice, 435 F.
Supp. 1203, 1203 (D.D.C. 1977) (“The general rule is that all three branches of government, legislative, executive,
and judicial, are subject to the common law right.”)
66
To be sure, in Morgan v. United States, 304 U.S. 1 (1938), the Supreme Court emphasized “that in administrative
proceedings of a quasi-judicial character the liberty and property of the citizen shall be protected by the rudimentary
requirements of fair play,” which “demand ‘a fair and open hearing,’ essential alike to the legal validity of the
administrative regulation and to the maintenance of public confidence in the value and soundness of this important
governmental process.” Id. at 14–15. Some courts and advocates have read that language as embracing something
like a common-law right to access such proceedings, but it’s not clear that’s what the Morgan Court meant.
Elsewhere in the Morgan opinion, for example, the Court characterized “a fair and open hearing” as “embrac[ing]
not only the right to present evidence, but also a reasonable opportunity to know the claims of the opposing party
and to meet them.” In other words, it seems that, in extolling the right to a “fair and open hearing,” the Morgan
Court was not focused on public access so much as on the rights of the parties to fully understand and address the
claims made against them. Indeed, the issue of public access to the proceedings themselves seems never to have
arisen in Morgan.
67
See, e.g., Michael Spake, Public Access to Physician and Attorney Disciplinary Proceedings, 21 J. NAT’L ASS’N
OF ADMIN. L. JUDGES 289, 303 (2001) (“Common law does not recognize the right of the public to attend
administrative and licensure disciplinary proceedings.”); see also Detroit Free Press, 303 F.3d at 702 (seemingly
acknowledging “that there was no common law right of access to administrative proceedings,” but dismissing that
fact as largely irrelevant to the “experience and logic” test the court was applying).
68
See, e.g., FCC v. Schreiber, 381 U.S. 279, 293 (1965) (“The procedural rule, establishing a presumption in favor
of public proceedings, accords with the general policy favoring disclosure of administrative agency proceedings.”).
69
Fitzgerald, 467 F.2d at 764.
70
See Detroit Free Press, 303 F.3d at 702–03 (acknowledging that argument in the context of a claim for a FirstAmendment right of public access to deportation proceedings).

12

proceedings could interfere with the “basic tenet of administrative law that agencies should be
free to fashion their own rules of procedure.”71
The common-law right of access to certain government proceedings and records is
weaker than its First Amendment counterpart.72 That is largely because, whereas closures in
contravention of the First Amendment right must satisfy strict scrutiny, the common-law right of
access is usually subject to a mere ad hoc balancing test, so that the right of access may be
overcome simply by showing that a countervailing interest exists that is more compelling than
the interest in openness.73
The common-law right of access also applies only to so-called “public” proceedings and
records,74 notwithstanding that “[n]onpublic proceedings are common throughout the judiciary”75
and, indeed, throughout government and society.76 So, for instance, the common-law right of
access does not give the public the right to view grand jury proceedings or other government
proceedings that depend on privacy to function effectively.77 To the extent there is a commonlaw right of access to agencies’ adjudicative proceedings, it would doubtless be subject to the
same limitations.
3.

Statutory Requirements

Congress has considerable discretion to regulate public access to agency adjudicative
procedures within the rough contours of the constitutional and common-law principles described
above. Against this backdrop, Congress has enacted many statutes that bear on public access to
71

See Vermont Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 544 (1978); see also
Schreiber, 381 U.S. at 289 (stressing “the established principle that administrative agencies should be free to fashion
their own rules of procedure and to pursue method of inquiry capable of permitting them to discharge their
multitudinous duties,” and noting that the principle “is an outgrowth of the congressional determination that
administrative agencies and administrators … will be in a better position than federal courts or Congress itself to
design procedural rules adapted to the peculiarities of the industry and the tasks of the agency involved”) (quotation
marks and citations omitted); see also United States v. Simone, 14 F.3d 833, 83
72
United States v. Bus. of Custer Battlefield Museum & Store, 658 F.3d 1188, 1197 n.7 (9th Cir. 2011); see also
United States v. El-Sayegh, 131 F.3d 158, 160 (D.C. Cir. 1997) (characterizing common-law right of access as
“broader but weaker” than its First Amendment counterpart).
73
See Nixon v. Warner Commc’ns, 435 U.S. 589, 598 (1978) (balancing of interests “left to the sound discretion of
the trial court, a discretion to be exercised in light of the relevant facts and circumstances of a particular case”).
Partly because the balancing standard can make it so easy for tribunals to close proceedings, some courts apply
stricter requirements for overcoming the common-law right of access. See Peter G. Blumberg, Comment, Sunshine
and Ill Wind: The Forecast for Public Access to Sealed Search Warrants, 41 DePaul L. Rev. 431, 446 (1992)
(summarizing the case law in this area).
74
See, e.g., Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1311 (11th Cir. 2001); Wash. Legal
Found. v. U.S. Sentencing Comm’n, 89 F.3d 897, 899 (D.C. Cir. 1996).
75
In re N.Y. Times Co., 577 F.3d 40,410 n.4 (2d Cir. 2009) (listing several nonpublic proceedings integral to the
judicial process); see, e.g., Douglas Oil Co. v. Petrol Stops Nw., 441 U.S. 211, 218 (1979) (“We have consistently
recognized that the proper functioning of our grand jury system depends upon the secrecy of grand jury
proceedings.”).
76
See Branzburg v. Hayes, 408 U.S. 665, 684 (1972) (“Despite the fact that news gathering may be hampered, the
press is regularly excluded from grand jury proceedings, our own conferences, the meetings of other official bodies
gathered in executive session, and the meetings of private organizations.”).
77
See Douglas Oil Co., 441 U.S. at 218.

13

agency adjudicative proceedings. Most relate to specific programs and agencies. A number of
statutes require that hearings be “public” or “open to the public,”78 for example, and at least one
statute demands closed hearings.79
For most adjudicative proceedings, there are probably no agency- or program-specific
statutes regulating public access. Certain generally applicable statutes, however, may bear on
public access, including, most notably, the Freedom of Information Act (FOIA),80 the
Government in the Sunshine Act,81 and the Privacy Act.82 The requirements of these statutes are
discussed in greater detail below.
a.

Freedom of Information Act

By far the best known open-government statute is FOIA, but it has little to say about how
agencies conduct their adjudicative proceedings. FOIA is concerned with public access to
official records and other documents,83 not access to proceedings themselves. So while FOIA
does ensure that the public can access an array of materials regarding agencies’ adjudicative
proceedings,84 it does not regulate the public’s ability to access those proceedings.
b.

Government in the Sunshine Act

The Sunshine Act requires, in general, that meetings of each federal agency headed by a
collegial body, a majority of whose members are appointed by the President with the advice and
consent of the Senate, be open to public observation.85 But that general requirement is subject to
myriad qualifications and exceptions, such that it does not apply to most adjudicative
proceedings. For instance, the Act applies only to agencies “headed by a collegial body
composed of two or more individual members, a majority of whom are appointed to such
position by the President with the advice and consent of the Senate.”86 That definition only
covers about 50 federal agencies, none of which are among the agencies that conduct the vast

78

See, e.g., 7 U.S.C. § 136d(d) (pesticide control); 8 U.S.C. § 1534(a)(2) (immigration removal); 12 U.S.C.
§§ 1786(s)(2), 1818(u)(2), 4522(b), 4586(b), 4639(b), ; 15 U.S.C. § 717t-1(b) (natural gas civil penalty authority);
15 U.S.C. § 77u (SEC); 16 U.S.C. §§ 544m(a)(3) (national forest civil penalty authority), 823b(a) (hydropower
license enforcement), 8250o-1 (sanctions for noncompliance with procedural and administrative provisions); 30
U.S.C. §§ 1260(a), 1268(b); 29 U.S.C. § 661(g) (OSHRC); 33 U.S.C. §§ 923(b) (Longshore and Harbor Workers’
Compensation Act), 1342(a)(1) (national pollutant discharge elimination system); 42 U.S.C. § 5851(b)(2)(A); 46
U.S.C. § 6302 (marine casualty investigations); 49 C.F.R. § 60117(b)(2) (PHMSA).
79
12 U.S.C. § 2266(a) (Farm Credit Administration enforcement actions). The Crime Control Act of 1990, Pub. L.
No. 101-647, eliminated similar provisions applicable to enforcement proceedings before the National Credit Union
Administration and Federal Deposit Insurance Corporation.
80
5 U.S.C. § 552.
81
Id. § 552b.
82
Id. § 552a.
83
See Pratt v. Webster, 673 F.2d 408, 413 (D.C. Cir. 1982) (explaining that FOIA provides “a statutory right of
public access to documents and records” held by federal agencies).
84
See 5 U.S.C. § 552(a)(1)–(2).
85
Id. § 552b(b).
86
Id. § 552b(a)(1) (defining “agency” for purposes of the Act).

14

majority of administrative adjudicative proceedings in the federal government.87 Moreover, the
“meetings” covered by the Act are limited to those that involve a quorum of the heads of a given
agency and that “determine or result in the joint conduct or disposition of official agency
business.”88 It thus does not apply to decisions of lower-level personnel within covered agencies,
including most adjudicators.
Even when the Act does apply, moreover, agencies can invoke any of ten enumerated
exemptions that allow portions of meetings to remain closed.89 A few of those exemptions are
especially relevant to prominent types of adjudicative proceedings. Exemption 4, for example,
allows for closing meetings when a party might “disclose trade secrets and commercial or
financial information obtained from a person and privileged or confidential.”90 Exemption 6
allows closure of proceedings whenever a party is likely to “disclose information of a personal
nature where disclosure would constitute a clearly unwarranted invasion of personal privacy.”91
And Exemption 10 allows agencies to hold closed deliberations whenever the agency properly
determines that a portion of a meeting is likely to “specifically concern the … disposition by the
agency of a particular case of formal agency adjudication pursuant to the procedures in section
554 [of the APA] or otherwise involving a determination on the record after opportunity for
hearing.”92 In describing this last exemption, the Second Circuit explained that “[t]he evident
sense of Congress was that when a statute required an agency to act as would a court, its
deliberations should be protected from disclosure as a court’s would be.”93
On top of all that, even in those rare cases when the Sunshine Act’s public-meeting
requirements might apply to particular adjudicative proceedings, the agencies conducting those
proceedings often proceed by notational voting, a process whereby an agency’s members
“receive written materials, review the same, and then provide their votes in writing.”94 Because
notational voting does not involve any interaction of at least a quorum of the agency’s
leadership, it does not trigger the Sunshine Act.95
The upshot of all these exceptions and limitations is that the Sunshine Act seldom gives
the public a right to access anything other than formal hearings of commissioners, which tend to
be somewhat pro forma. It does not play a significant role in granting public access to
adjudicative proceedings.

87

See Admin. Conf. of the U.S., Federal Administrative Procedure Sourcebook, Government in the Sunshine Act,
available at https://sourcebook.acus.gov/wiki/Government_in_the_Sunshine_Act/view (last visited Oct. 14, 2021).
88
5 U.S.C. 552b(a)(2) (defining “meeting” for purposes of the Act).
89
Id. § 552b(c).
90
Id. § 552b(c)(4).
91
Id. § 552b(c)(6).
92
Id. § 552b(c)(10).
93
Time, Inc. v. U.S. Postal Serv., 667 F.2d 329, 334 (1981); see also AMREP Corp. v. Fed. Trade Comm’n, 768
F.2d 1171, 1179 (10th Cir. 1985) (Sunshine Act did not require Federal Trade Commission, when “act[ing] as a
court,” to hold an open proceeding when voting on whether the plaintiff had engaged in unfair and deceptive
business practices).
94
Reeve T. Bull, The Government in the Sunshine Act in the 21st Century 9–10 (Mar. 10, 2014) (report to the
Admin. Conf. of the U.S.).
95
See id.

15

c.

Privacy Act

The Privacy Act places limits upon the disclosure of “records” maintained by federal
agencies.96 The Act defines term “record” broadly, to cover “any item, collection, or grouping of
information about an individual that is maintained by an agency, including, but not limited to, his
education, financial transactions, medical history, and criminal or employment history and that
contains his name, or the identifying number, symbol, or other identifying particular assigned to
the individual, such as a finger or voice print or a photograph.”97 It also includes things like
medical or personnel records.98
The Privacy Act pertains to public access to adjudications only to the extent those
adjudications involve disclosure of agency records covered by the Act. Although the Act does
not define “disclose,” most courts have interpreted the term to include any agency process that
makes protected information available to people who didn’t already know it.99 That includes oral
communication of the information.100 To avoid Privacy Act violations, therefore, agency
adjudicators may be forced to at least partially close hearings when an open hearing might result
in government disclosure of private information in an agency record.101
4.

Agency Rules and Policies

Within constitutional and common-law principles and applicable statutory requirements,
many agencies have adopted their own rules and policies for determining whether adjudicative
proceedings should be open to public observation. Our research uncovered more than a hundred
relevant rules and policies from dozens of agencies and agency subunits. They appear in the
Code of Federal Regulations, administrative manuals, adjudicator benchbooks, practitioner
guides, and other explanatory materials. Some implement the statutory requirements described in
the previous section; many more appear to represent agencies’ own policy choices.
Following the model of statutes like the Sunshine Act, agency rules typically establish a
general presumption that a certain class of proceedings should be open or closed to public
observation but set forth conditions under which an adjudicator or the agency may or must depart
96

See 5 U.S.C. § 552a(b).
Id. § 552a(a)(4).
98
See News-Press v. U.S. Dep’t of Homeland Sec., 489 F.3d 1173, 1186 (11th Cir. 2007) (combination of Privacy
Act and FOIA Exemption 6 “requires agencies to withhold ‘personnel and medical files and similar files the
disclosure of which would constitute a clearly unwarranted invasion of personal privacy”)
99
See, e.g., Schmidt v. U.S. Dep’t of Veterans Affairs, 218 F.R.D. 619, 630 (E.D. Wis. 2003) (“The court will
define the term ‘disclose’ to mean the placing into the view of another information which was previously
unknown.”); see also Pilon v. U.S. Dep’t of Justice, 73 F.3d 1111 (D.C. Cir. 1996) (concluding that, on the
particular facts of that case, “disclose” included the sharing of information with someone who already knew it, while
also recognizing “the ‘common sense’ notion that it is not possible to ‘disclose’ something to someone who already
knows it”).
100
See, e.g., Bartel v. Fed. Aviation Admin., 223 F.2d 1403 (D.C. Cir. 1984) (finding Privacy Act violation based, in
part, on oral disclosure); Buckles v. Indian Health Serv., 310 F. Supp. 2d 1060, 1068 (D.N.D. 2004) (“A disclosure
of a record may occur by oral communication—it need not be a written communication.”).
101
E.g., Abdalla v. United States, 106 Fed. Cl. 757 (2010) (protective order managing disclosure of Privacy Actprotected information during ongoing litigation).
97

16

from that presumption in specific circumstances.102 This approach is consistent with the
recommendation of ACUS with respect to evidentiary hearings, which urges agencies to
adopt the presumption that [evidentiary] hearings are open to the public, while
retaining the ability to close the hearings in particular cases including when the
public interest in open proceedings is outweighed by the need to protect (a)
National security; (b) Law enforcement; (c) Confidentiality of business
documents; and (d) Privacy of the parties to the hearing.103
C.

Establishing a General Presumption

Under federal statutes and agency rules and policies, some proceedings are presumptively
open to public observation and others are presumptively closed. There can be significant
variation across proceeding types, programs, and agencies. In a few programs, many types of
proceedings are, as a general matter, conducted publicly. In others, proceedings are only rarely,
if ever, open to public observation. In the majority of programs, certain especially significant
types of proceedings are conducted publicly while others are closed to public observation as a
matter of course.
Several factors appear to at least partially explain which proceedings Congress and
agencies have decided should be presumptively open to public observation and which should be
closed. They are:
•
•
•
•
•
•

the procedural purpose of a proceeding in an overall process for adjudication;
the nature of the affected interests and information in typical proceedings;
the relationship between the parties in typical proceedings;
the adversarial or non-adversarial features of the overall adjudication process;
the degree of public interest in typical proceedings; and
the role of public input in agency decisionmaking.

The following sections address each of these factors in turn.
1.

Procedural Purpose of the Proceeding

Agency rules of practice provide for lots of types of proceedings ranging from the truly
informal to the trial-like. Agencies use different types of proceedings to manage adjudicative
processes and gather the legal and factual inputs necessary to decide cases. Public access appears
to be more common in some types of proceeding than in others. Below, we examine five broad
categories of agency adjudicative proceedings: (a) evidentiary hearings; (b) investigatory
proceedings; (3) settlement conferences and ADR proceedings; (4) prehearing, scheduling, and

102

See, e.g., 10 C.F.R. § 2.328 (“Except as may be requested under section 181 of the Act, all hearings will be
public unless otherwise ordered by the Commission.”); 12 C.F.R. 109.33(a) (“All hearings shall be open to the
public, unless the Comptroller, in the Comptroller’s discretion, determines that holding an open hearing would be
contrary to the public interest.”).
103
Recommendation 2016-4, supra note 26, ¶ 18,; see also Recommendation 2021-4, supra note 15, ¶ 3.

17

other informal proceedings; and (5) appellate proceedings. These categories are intended to be
representative, not exhaustive.
a.

Evidentiary Hearings

Evidentiary hearings are often trial-like proceedings at which parties “make evidentiary
submissions, have an opportunity to rebut testimony and arguments made by the opposition, and
to which the exclusive record principle applies.”104 The exclusive record principle means that the
decisionmaker is largely “confined to considering inputs from the parties . . . when determining
factual issue.”105 Because the exclusive record principle applies, decisionmakers are ordinarily
discouraged or prohibited from engaging in substantive communications outside the hearing.
Openness can thus be crucial to the success of evidentiary hearings because it helps ensure both
that decisionmakers limit their consideration to the evidentiary record and that all record
evidence has been tested through a fair and open process.
ACUS has specifically addressed public access to evidentiary hearings, recommending
that agencies adopt the presumption, rebuttable in specific circumstances, that evidentiary
hearings are open to public observation.106 Many agencies have published policies stating that
evidentiary hearings are presumptively open. Most exceptions can probably be explained by
other factors discussed below.
b.

Investigatory Proceedings

Many agencies have proceedings that, although sometimes similar to evidentiary
hearings, do not rely on the exclusive record principle. Such proceedings are generally one part
of an information-gathering process that permits, even encourages, decisionmakers to go beyond
the inputs provided by the parties and “investigate” the facts. For that reason, we call such
proceedings “investigatory” for purposes of this report. (The APA also uses the term.107)
It is difficult to generalize about agency policies on public access to investigatory
proceedings because agencies use investigatory proceedings in very different ways. In some
programs, the investigatory proceeding is the only opportunity for parties to participate in an oral
hearing or submit evidence and arguments. In other programs, agencies use investigatory
proceedings as an efficient way to gather information before initiating a process involving an
opportunity for an evidentiary hearing or pursuing litigation in the courts. At some regulatory
agencies, for example, formal adjudication takes place after a comparatively informal process,
potentially involving an investigatory proceeding, results in issuance of a citation or a complaint.
Public access to investigatory proceedings could positively or negatively impact the
accuracy and efficiency of agency investigative processes. Openness may be desirable, say to
104

Michael Asimow, Evidentiary Hearings Outside the Administrative Procedure Act 4 (Nov. 10, 2016) (report to
the Admin. Conf. of the U.S.).
105
Id.
106
See Recommendation 2016-4, supra note 26, ¶ 18.
107
5 U.S.C. § 555(c).

18

root out falsehoods, ensure all relevant perspectives are heard, support community engagement,
or promote an investigation’s public legitimacy. Confidentiality may be preferable in other
situations, say to encourage candor, permit law enforcement to maintain secrecy about an
ongoing operation, or prevent unwarranted adverse publicity through premature accusations of
wrongdoing.108 Agencies have taken different approaches depending on context.109
c.

Settlement Conferences and Alternative Dispute Resolution Proceedings

Agencies use settlement conferences and other ADR-related sessions to resolve or ratify
the resolution of disputes through processes such as mediation, negotiation, conciliation,
facilitation, minitrials, and arbitration. Because these sessions often take place under an agency’s
supervision, they can be thought of as adjudicative proceedings for purposes of this report.
Unlike the traditional adversarial model of administrative adjudication, which relies on
open proceedings, ADR modalities typically operationalize confidentiality to encourage candor
and achieve consensus.110 ACUS has recognized the importance of confidentiality to ADR in
several recommendations,111 and the Alternative Dispute Resolution Act contains specific
guarantees of confidentiality.112 Requiring public access to ADR proceedings would, in most
situations, eliminate their effectiveness. As a result, nearly all agencies that offer ADR close
settlement conferences and ADR proceedings to non-participants.113
ADR ultimately represents a balancing of private, government, and public interests that
favors certain objectives (e.g., efficiency, consensus, informality, cost-effectiveness) over others
like public accessibility. Although ADR has proved a powerful tool for promoting the fair and
efficient resolution of disputes in some administrative contexts, the confidentiality that defines it
may look a lot like secrecy in contexts in which there is significant public interest and a history
of community engagement.114
d.

Prehearing, Scheduling, and Other Informal Conferences

Agencies use prehearing and scheduling conferences for a number of procedural and
time-serving purposes, such as clarifying issues, exchanging views, agreeing to stipulations or
admissions of fact, agreeing to waive an oral hearing, scheduling deadlines for submitting
108

Recommendation 73-1, supra note 39; see also Cortez, supra note 39; Gellhorn, supra note 39.
Compare 49 C.F.R. § 554.10 (public meeting), with 16 C.F.R. § 1118.5(c) (closed hearing). See also Ernest
Gellhorn, The Treatment of Confidential Information by the Federal Trade Commission: Pretrial Practices, 36 U.
CHI. L. REV. 113, 117–23 (1968).
110
See Margaret Ward, Public Fuss in a Private Forum, 2 HARV. NEGOTIATION L. REV. 217, 220–21 (1997).
111
See Recommendation 88-11, supra note 40; Admin. Conf. of the U.S., Recommendation 88-5, Agency Use of
Settlement Judges, ¶ 4, 53 Fed. Reg. 26030, 26032 (July 11, 1988); Recommendation 86-3, supra note 41.
112
See 5 U.S.C. §§ 571 et seq.
113
See, e.g., 10 C.F.R. § 851.41(a); 16 C.F.R. § 1012.4(d)(4); 18 C.F.R. § 385.606; 29 C.F.R. § 18.13(g); 29 C.F.R.
§ 102.45(c)(7); 29 C.F.R. § 1603.108(d); 29 C.F.R. § 2200.120(d), (e); 49 C.F.R. § 1109.3(d).
114
For example, when the EPA proposed a rule that would have mandated ADR between agency lawyers and permit
applicants, it was widely seen as a way to silence community voices and obscure decisionmaking processes. See,
e.g., Coral Davenport, E.P.A. Plans to Curtail the Ability of Communities to Oppose Pollution Permits, N.Y. TIMES
(July 12, 2019).
109

19

written materials, managing discovery, setting the time and place for further proceedings,
resolving dispositive motions, etc. Some agencies have published policies presumptively closing
prehearing, scheduling, or informal conferences.115 Others may do so as a matter of practice,
even in the absence of a specific rule. A few agencies, like the Consumer Financial Protection
Bureau,116 Consumer Product Safety Commission,117 and Federal Trade Commission118 have
adopted policies that presumptively open prehearing and scheduling conferences to public
observation.
e.

Appellate Proceedings

Oral arguments and other presentations that take place during appellate review often take
place before adjudicators who have limited discretion to reevaluate factual findings or consider
new evidence. Their general purpose is to help appellate decisionmakers “address issues that
may have been left unresolved in the briefs or about which agency members have questions.”119
There can be considerable public interest in oral arguments because appellate decisions at many
agencies can have precedential effect and thereby impact similarly situated non-parties. Some
agencies, most famously the National Labor Relations Board, develop policy primarily through
appellate proceedings.
Some appellate bodies, particularly at independent regulatory agencies, hold appellate
proceedings in the context of meetings covered under the Sunshine Act.120 The Act establishes a
presumption that meetings at which a quorum of members are present, including oral arguments,
are presumptively “open to public observation.”121 The Federal Mine Safety and Health Review
Commission (FMSHRC) has adopted a rule that “it is the general policy of the Commission to
open to the public meetings that may be subject to closure, including meetings concerning
adjudication of cases.”122 The Merit Systems Protection Board notes that because “[m]ost regular
Board business consists of reviewing initial decisions in cases adjudicated after an opportunity
for a hearing has been provided,” the agency could properly close “a majority of its meetings”
under the Act.123
Regardless of whether the Sunshine Act governs appellate review systems, ACUS
recommends that agencies consider providing remote access to oral arguments and other
appellate proceedings that “present significant legal and policy issues likely to be of interest to
regulated parties and other members of the public.”124 Some Sunshine Act agencies, like
FMSHRC and the Occupational Safety Health Review Commission, do make oral arguments
115

See, e.g., 10 C.F.R. §§ 205.171, 820.22; 42 C.F.R. §§ 422.1032, 423.1032, 498.49(a).
12 C.F.R. §§ 1081.203, 1081.214
117
16 C.F.R. § 1025.21(d).
118
16 C.F.R. § 3.21(g).
119
ADMIN. CONF. OF THE U.S., MODEL ADJUDICATION RULES, § 430 (rev. 2018).
120
See supra Part I.B.3.b.
121
5 U.S.C. § 552b(b).
122
29 C.F.R. § 2701.7(a). The regulation also notes: “Although the Commission has to date held few meetings,
those that have been held concerned the adjudication of cases and could properly have been closed.” Id.
123
5 C.F.R. § 1206.9(a)(2).
124
Recommendation 2020-3, supra note 31, ¶ 20.
116

20

available on their websites.125 And several appellate bodies not subject to the Sunshine Act,
including the Environmental Appeals Board126 and the Board of Immigration Appeals,127 have
adopted policies that oral arguments are presumptively open to the public.
2.

Nature of Affected Interests and Information Involved

ACUS has acknowledged that the public interest in open evidentiary hearings may be
outweighed, in particular cases, by the need to protect national security, law enforcement,
confidentiality of business documents, or participants’ privacy.128 This approach echoes FOIA,
the Privacy Act, and the Sunshine Act, which all stand for the principle that the need to protect
certain categories of sensitive information can outweigh, in some situations, the value of
transparency.129 Many agencies have adopted policies to close specific proceedings, in whole in
part, that would implicate certain interests or result in the disclosure of sensitive information.
But some agencies administer programs in which most or all cases, by their nature, are
likely to involve sensitive information or implicate interests like those that ACUS identified in its
previous recommendations. There may be no significant portion of a typical proceeding that does
not involve discussion of, say, a party’s medical history or financial records. It is difficult to see
any value in a presumption of openness if all proceedings under a given program are likely to
satisfy a legal standard for closure.
Consider benefits adjudication before SSA administrative law judges (ALJs) and the
Board of Veterans Appeals (BVA). Presumptively closed hearings have always been the norm in
both programs.130 The Attorney General’s Committee on Administrative Procedure observed in
1941 that although agency adjudicative hearings “should be, and almost invariably are, public,”
there were exceptions “where hearings are private are for the benefit of the individual involved.”
The Committee noted: “Hearings conducted by the Social Security Board are private whenever
‘intimate matters of scandalous nature are involved.’ Veterans’ Administration cases, usually
involving medical testimony, are private, unless the veteran waives his right to privacy.”131
Writing about SSA hearings in Bureaucratic Justice (1983), Jerry Mashaw observed that
“[t]he usual value of open procedures (that is, procedures open to the public as a guarantee
against arbitrariness in a closed authority structure) is, from the perspective of the privacy issue,
125

Oral Arguments, FMSHRC, https://fmshrc.gov/meetings-arguments/arguments (last visited Oct. 13, 2021);
OSHRC E-FOIA Reading Room, OSHRC, https://www.oshrc.gov/foia/oshrc-e-foia-reading-room/.
126
EPA, THE ENVIRONMENTAL APPEALS BOARD PRACTICE MANUAL 10–11 (Aug. 2013) [hereinafter EAB
MANUAL].
127
DOJ, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW POLICY MANUAL § 8.5 (Dec. 2020) [hereinafter EOIR
MANUAL].
128
Recommendation 2021-4, supra note 15, ¶ 3; Recommendation 2016-4, supra note 26, ¶ 18.
129
See 5 U.S.C. §§ 552(b), 552a, 552b.
130
See 20 C.F.R. §§ 404.944, 416.1444; cf. 38 C.F.R. § 20.701. It is unclear to what extent individual members of
the public, especially sources of emotional support for parties, may be able to attend proceedings with the consent of
the party and adjudicator. With respect to SSA hearings, the websites of some individual claimants’ representatives
provide conflicting accounts. Current rules could be interpreted to permit adjudicators to allow non-parties such as
family and friends to attend otherwise closed hearings, but that principle could perhaps be clarified by regulation.
131
FINAL REPORT OF THE ATTORNEY GENERAL’S COMMITTEE, supra note 25, at 68.

21

also problematic.”132 And the National Organization of Social Security Claimants’
Representatives made a similar point in a May 2021 letter to ACUS regarding its project on
Virtual Hearings in Agency Adjudication,133 writing:
[R]ather than the presumption . . . that hearings are open to the public unless
circumstance dictate otherwise, the recommendation should allow for agencies to
determine that none of their hearings should be public if they all involve
information that the parties . . . would generally want to be kept private. This
would better protect the identities and medical information of claimants for Social
Security disability and other benefits.134
All of these perspectives essentially assert that the need to protect claimants’ privacy outweighs
any public interest in open SSA and BVA hearings.
There are opposing (albeit minority) perspectives. Some ALJs, including a former
president of the Association of Administrative Law Judges, Randall Frye, have advocated for
importing a suite of adversarial features into SSA hearings, including open hearings, to guard
against fraudulent claims and dishonest testimony.135 Practitioner Jasmine Harris has suggested
that greater public access to SSA proceedings might help reduce stigma against persons with
disabilities by “produc[ing] a more informed national conversation on the role of social supports
in the disability context.”136 And in a footnote to a position paper on the public right of access to
administrative adjudications, the Committee on Communications and Media Law of the
Association of the Bar of the City New York noted that “public policy strongly favors the
presumption of openness even in such non-adversarial proceedings” given “concerns over bias
and discrimination” against applicants for benefits.137
We have identified a number of agencies, in addition to SSA and BVA, that have adopted
policies that always or presumptively close proceedings under certain programs, such as:
•

Chemical and Nuclear Weapons. Department of Commerce hearings involving
alleged violations of chemical and nuclear weapons rules are presumptively closed.138

132

JERRY MASHAW, BUREAUCRATIC JUSTICE 92 (1983).
Recommendation 2021-4, supra note 15.
134
Letter from Barbara Silverstone, Exec. Dir., Nat’l Org. of Soc. Sec. Claimants’ Representatives, to Jeremy
Graboyes, Admin. Conf. of the U.S. (May 4, 2021), https://www.acus.gov/sites/default/files/documents/commentnosscr-050421.pdf.
135
Jeffrey S. Wolfe, Dale Glendening, Through the Disability Looking Glass: A Considered Response to Professor
Pashler’s Wild Social Security Hare, 44 U. MEM. L. REV. 523, 593–95 (2014); D. Randall Frye, Fixing Disability
Courts, N.Y. TIMES (Jan. 20, 2014), available at https://www.nytimes.com/ 2014/01/20/opinion/fixing-disabilitycourts.html; D. Randall Frye, Statement of the Association of Administrative Law Judges, Committee on Ways and
Means, Subcommittee on Social Security, 33 J. NAT’L ASS’N ADMIN. L. JUDICIARY 35, 47–48 (2013).
136
Jasmine E. Harris, Processing Disability, 64 AM. U. L. REV. 457, 519–24 (2015).
137
Comm. on Commc’ns and Media Law of the Ass’n of the Bar of the City of New York, “If It Walks, Talks and
Squawks . . . .” The First Amendment Right of Access to Administrative Adjudications: A Position Paper, 23
CARDOZO ARTS & ENT. L.J. 21, 25 n.6 (2005).
138
15 C.F.R. §§ 719.14(b), 785.12(b).
133

22

•

Civil Service Proceedings Involving Sensitive Security Information. Although
MSPB hearings are presumptively open to the public, “absent good cause shown, all
hearings in which [sensitive security information controlled by the Department of
Homeland Security] may be disclosed must be closed to the public.”139

•

Equal Employment Opportunity (EEO). Attendance at Equal Employment
Opportunity Commissions hearings regarding federal-sector EEO complaints are
“limited to persons determined by the administrative judge to have direct knowledge
relating to the complaint.”140 The same is true in many agency EEO processes.141

•

Government-Managed Health Insurance and Health Care. HHS rules provide that
Medicare enrollees’ appeals of coverage decisions, decided in hearings before the
Office of Medicare Hearings and Appeals, are presumptively closed.142 DOD also
presumptively closes similar proceedings involving TRICARE contractor decisions
“[b]ecause of the personal nature of the matters to be considered.”143

•

Health Care Provider Status. Certain HHS hearings to review determinations by the
Centers for Medicare and Medicaid Services (CMS) and Office of the Inspector
General affecting certain providers’ participation in the Medicare and Medicaid
programs.144 Some hearings involve determinations with respect to an incumbent or
prospective provider’s status as a provider; others involve matters such as the
termination of provider agreements, noncompliance with relevant regulatory
requirements, denial of reimbursement for services, and the imposition of
sanctions.145

•

Health Care Provider Reimbursement. The Provider Reimbursement Board, within
CMS, hears appeals by certified Medicare service providers dissatisfied by the final
determinations of Medicare contractors and CMS. Board hearings are open only to
the parties, CMS representatives, and “such other persons as the Board deems
necessary and proper.”146 Michael Asimow notes: “Presumably this provision is
justified since the hearings concern private financial information of service
providers.”147

•

Immigration. Although immigration court proceedings are presumptively open,148
the Executive Office for Immigration Review and Department of Homeland Security

139

U.S. MERIT SYSTEMS PROTECTION BOARD JUDGES’ HANDBOOK ch. 10, § 3(b) (Oct. 2019),
https://www.mspb.gov/appeals/files/ALJHandbook.pdf [hereinafter MSPB HANDBOOK].
140
29 C.F.R. § 1614.109(e).
141
See, e.g., 12 C.F.R. § 268.108(e).
142
See 42 C.F.R. §§ 405.1030(a), 423.2030(a).
143
32 C.F.R. § 199.10(d)(11)(i).
144
42 C.F.R. § 498.60(a).
145
42 C.F.R. § 498.3.
146
42 C.F.R. § 405.1851.
147
ASIMOW, supra note 16, at 8–9.
148
8 C.F.R. §§ 1003.27, 1240.10(b).

23

have adopted policies that presumptively close proceedings involving exclusion,149
applications for asylum or withholding of deportation,150 and credible fear.151
Proceedings concerning an “abused alien spouse” or “abused alien child” are also
presumptively closed.152
•

March-In Rights. Proceedings by which agencies exercise rights to require
contractors’ to grant licenses to patented inventions produced with federal funds are
presumptively closed.153

•

Medicare Noncompliance. Under CMS rules, hearings involving civil money
penalties for alleged noncompliance by drug manufacturers and Medicare Advantage
organizations are open “to the parties and their representatives and technical advisors,
and to any other persons whose presence the ALJ considers necessary and proper.”154

•

Parole. Prisoners’ parole hearings before the United States Parole Commission “shall
not be open to the public.”155

•

Post-Employment Conflicts of Interest. Several agencies have also adopted policies
that presumptively close hearings involving the disbarment or suspension of previous
employees based on a conflict of interest.156

•

Representative Misconduct. Although agencies such as the Executive Office for
Immigration Review157 have adopted policies that representative disciplinary hearings
are presumptively public, many others have taken the opposite approach.158

•

Security Clearances. Hearings before Department of Energy administrative judges to
determine eligibility for access to classified and special nuclear material or national
security information are presumptively closed to the public.159

•

Selective Service. Proceedings before the National Appeal Board of the Selective
Service System are “closed to the public.”160

149

8 C.F.R. § 1240.32.
8 C.F.R. § 1240.33(c)(1).
151
8 C.F.R. § 1208.30(g)(2)(iii).
152
8 C.F.R. § 1003.27(c).
153
37 C.F.R. § 401.6; 48 C.F.R. § 1227.304-5.
154
42 C.F.R. §§ 422.1046(a), 423.1046(a).
155
28 C.F.R. § 2.13(e).
156
15 C.F.R. § 0.735-46; 31 C.F.R. § 15.737-20(b); 22 C.F.R. § 18.15; 43 C.F.R. § 73b.5.
157
8 C.F.R. §§ 292.3(h)(3), 1003.106(a)(2)(v), 1003.108(c). For a discussion of the policy considerations behind one
agency’s shift from presumptively closed to presumptively open proceedings in this context, see Disciplinary
Proceedings Involving Professionals Appearing or Practicing Before the Commission, Securities Act Release No.
33-6783, 41 SEC Docket 388, 1988 WL 1000021 (July 7, 1988).
158
12 C.F.R. §§ 19.199, 263.97, § 623.7, 1209.75(f); 37 C.F.R. § 11.44(c).
159
10 C.F.R. § 710.26(c).
160
32 C.F.R. § 1653.3(t).
150

24

3.

Adversarial or Non-Adversarial Features of Agency Processes

Adjudicative processes are often classified as either adversarial or inquisitorial (called
“non-adversarial” in some programs). The distinguishing feature between the two models is the
role played by the decisionmaker with respect to the parties. In the adversarial model, the parties
investigate the facts, generate the evidentiary record, and raise legal arguments before a passive
decisionmaker. In the inquisitorial model, the decisionmaker reaches a decision by actively
investigating the case and generating the evidentiary record. Although “no system is purely
adversarial or purely inquisitorial,” Michael Asimow has observed that “procedures can be
arrayed on this axis and will tend to fall nearer either the adversarial or inquisitorial poles.”161
It is certainly true that proceedings in several major programs that fall nearer the
inquisitorial pole (e.g., SSA, BVA) are presumptively closed to the public, whereas proceedings
in many programs that fall nearer the adversarial pole (e.g., ALJ hearings at independent
regulatory agencies) are presumptively open. One reference guide has suggested that the
“public’s right of access [under the First Amendment] applies to adversarial administrative cases
akin to judicial proceedings, but possibly not to nonadversarial proceedings such as Social
Security cases.”162
However, it is unclear that the adversarial or inquisitorial features of an adjudicative
process should determine whether, as a constitutional or policy matter, proceedings should be
open or closed. It is easy to contemplate explicitly inquisitorial proceedings in which there is
significant public interest.163 And there have been proposals over the years to introduce
adversarial features into hearings before SSA ALJs.164 That design choice alone is unlikely to
substantially alter parties’ privacy interests or the lack of interest by the general public in typical
SSA proceedings. When it comes to programs like Social Security disability and veterans
benefits, it may simply be that closed proceedings and non-adversarial practices serve similar
purposes: helping applicants obtain financial assistance for which they are eligible.
4.

Relationship Between the Parties

Nearly all adjudications addressed in this report involve a federal agency and one or more
private parties. But agencies and private parties relate to each other in different ways depending
on the program involved. Some adjudications involve prosecution of a private party by an
agency. Others involve a private party’s application or request for something—a benefit, service,
license, permit, etc. Still others situate the agency as a neutral decisionmaker resolving a dispute
between two non-agency parties.
a.

Agency Actions Against Private Parties

161

Michael Asimow, Five Models of Administrative Adjudication, 63 AM. J. COMP. L. 3, 6–7 (2015).
AM. BAR ASS’N, SECTION OF ADMIN. LAW & REG. PRACTICE, A GUIDE TO FEDERAL AGENCY ADJUDICATION 83
(2d ed. 2012).
163
See Soc’y of Prof. Journalists v. Sec’y of Labor, 832 F.2d 1180 (10th Cir. 1987); Comm. on Commc’ns and
Media Law of the Ass’n of the Bar of the City of New York, supra note 137, at 25 n.6. But see Salt Lake Tribune v.
Chao, No. 2:07-CV-739, 2007 WL 2973269 (D. Utah Oct. 9, 2007).
164
See supra note 135.
162

25

Many proceedings take place in the context of an agency investigation of or action
against a private party for alleged noncompliance with the law. Given the specter of the Star
Chamber,165 it is unsurprising that many enforcement proceedings are subject to statutes that
mandate open hearings.166 Many agency enforcement actions are also governed by the formalhearing provisions of the APA. The American Bar Association’s Section of Administrative Law
and Regulatory Practice has asserted that “the very concept of a hearing comparable to a judicial
proceeding,” codified in those provisions, “entails norms of openness.”167
There are some exceptions. Hearings involving civil money penalties for alleged
noncompliance by drug manufacturers and Medicare Advantage organizations are open only “to
the parties and their representatives and technical advisors, and to any other persons whose
presence the [adjudicator] considers necessary and proper.”168 Although a few agencies, like the
Executive Office for Immigration Review,169 have adopted policies that representative
disciplinary hearings are presumptively public, several others close such proceedings to public
observation.170 And, as discussed earlier, many agencies have historically claimed the option to
conduct initial investigatory proceedings in private.171
There is at least some historical precedent for closing enforcement proceedings in
circumstances where publicity before a final disposition could result in reputational damage to
private parties, or where public access would negatively affect national security,172 law
enforcement, or some public interest. The Attorney General’s Committee on Administrative
Procedure noted, for example that “hearings involving misrepresentation under the Grain
Standards Act, where the only sanction is to make findings of misrepresentation public” were
presumptively closed to the public. “[I]f the hearing itself were to be public,” the Committee
reasoned, “the sanction would be invoked before a finding of guilt.”173 The Committee also
noted that “[h]earings conducted by the Federal Reserve Board to forfeit membership in the
Reserve System, and by the Federal Deposit Insurance Corporation to terminate the insurance
status of a bank, are private, since the mere publicity of a hearing might prove ruinous.”174
Congress ultimately required such hearings to be presumptively open to the public
through the Crime Control Act of 1990.175 And some agencies have explicitly found that, for

165

See supra note 25.
12 C.F.R. § 19.33(a); 12 C.F.R. § 263.33(a); 12 C.F.R. § 308.33(a); 12 C.F.R. § 747.33(a); 12 C.F.R. § 1081.300;
16 C.F.R. § 3.41(a); 17 C.F.R. § 201.301; 29 C.F.R. §§ 2201.2, 2400.2; 30 U.S.C. § 1271(a)(3), (4); 40 C.F.R. §§
22.3(a), 22.22(a)(2); 49 C.F.R. § 386.56(b).
167
Am. Bar. Ass’n, Sec. of Admin. Law & Reg. Practice, supra note 9.
168
42 C.F.R. §§ 422.1046(a), 423.1046(a).
169
8 C.F.R. §§ 292.3(h)(3), 1003.106(a)(2)(v), 1003.108(c).
170
12 C.F.R. § 19.199; 12 C.F.R. § 263.97; 12 C.F.R. § 623.7; 12 C.F.R. § 1209.75(f); 37 C.F.R. § 11.44.
171
Gellhorn, supra note 109, at 117–23.
172
See supra note 138.
173
FINAL REPORT OF THE ATTORNEY GENERAL’S COMMITTEE, supra note 25, at 68.
174
Id. Although federal law now requires that Federal Reserve and FDIC hearings be public, Farm Credit
Administration enforcement hearings remain presumptively closed. See 12 U.S.C. § 2266(a).
175
Crime Control Act of 1990, Pub. L. No. 101-647, §§ 2547, 104 Stat. 4789, 4886–87.
166

26

purposes of the programs they administer, policy considerations favoring public access outweigh
any potential reputational damage to parties.176
b.

Agency Decisions on Private Parties’ Applications

Probably the vast majority of federal agency adjudication involves decisions on private
parties’ applications and similar requests—for benefits, enrollment in programs, services,
licenses, permits, recognition of intellectual property interests, records and information, loans,
grants, employment, contracts, security clearances, authorizations, etc. Many involve processes
for oral proceedings ranging from full evidentiary hearings to truly informal conferences.
Decisions on private parties’ applications under many programs will have no direct
impact on people not associated with the applicant. Examples include decisions on applications
for public benefits (e.g., Social Security, veterans’ benefits) and enrollment in health insurance
programs. Proceedings in these programs seem likely to garner little or no public interest.
Other adjudications result in decisions that, although they nominally concern the interests
or obligations of the applicant, are more likely to have substantial impacts on non-applicants.
Examples include licenses and permits granted to public utilities and service providers and
entities that discharge pollutants or otherwise affect the environment. Unsurprisingly,
proceedings in these adjudications are more likely to attract significant public interest.
In some programs, decisions on one person’s application will affect the success of other
applicants. Examples include contract bids, job applications, applications for exclusive licenses
and permits, applications for grant and loan programs with funding or other limitations, and
applications for visas, permits, and licenses subject to numerical or physical limitation.
Depending on the program, applicants may have a very strong interest in attending proceedings
conducted on competitors’ applications.
c.

Adjudication Between Private Parties

Several agencies administer programs that involve the resolution of disputes between
private parties with competing claims or interests. In these programs, the government adjudicates
disputes without becoming a party to them. Examples include proceedings involving
patentability (inter partes review), commodity broker reparations, some labor and employment
matters, and certain agricultural and shipping disputes.177 Because these processes can look a lot
like traditional civil litigation in the courts, it can perhaps be argued that public access should be
the norm.178 In fact, some private-private schemes, such as workers’ compensation programs
176
See, e.g., Disciplinary Proceedings Involving Professionals Appearing or Practicing Before the Commission,
Securities Act Release No. 33-6783, 41 SEC Docket 388, 1988 WL 1000021 (July 7, 1988); H. P. Hood & Sons,
Inc., 58 F.T.C. 1184 (1961) (“the deterrent effect of public proceedings upon potential violators is greater by reason
of the fact that they are open to all interested persons”).
177
See generally Michael Sant’Ambrogio, Private Enforcement in Administrative Courts, 72 VAND. L. REV. 425
(2019).
178
Cf. Comm. on Commc’ns and Media Law of the Ass’n of the Bar of the City of New York, supra note 137.

27

administered by the Department of Labor (DOL),179 were explicitly established to supplement or
replace judicially administered schemes, in order to “provide relief to private parties facing
obstacles to recovery in federal court.”180 Given a past practice of open proceedings, there is
perhaps a clearer case for public access under constitutional principles.
5.

Degree of Public Interest

There are any number of reasons members of the public might be interested in attending
agency adjudicative proceedings, such as to:
•
•
•

report on notable participants or newsworthy events involved in an adjudication;181
observe, understand, or report on proceedings which may affect people and
communities beyond the parties to a proceeding, including regulatory beneficiaries
and similarly situated regulated entities; and
research, gain a better understanding of, or provide public oversight of agency
operations and performance.

And, as discussed in the next section, adjudication in programs provides explicit opportunities
for public participation beyond observation.
There can be substantial public interest in the outcome of specific cases. Interviewees
from a number of agencies shared anecdotes about specific, high-profile cases that attracted
inordinate attention, for example, cases involving licenses for controversial infrastructure
projects, newsworthy industrial accidents, or labor disputes involving major employers. But
interviewees reported that, even in high-profile cases, substantial public interest in a case does
not necessarily translate to substantial public attendance at proceedings for that case, especially
less formal or substantive proceedings such as prehearing, scheduling, and settlement
conferences. Although the lack of significant public interest in attending many adjudicative
proceedings may not fully justify existing policies that close certain types of proceedings to
public observation, it perhaps explains why they exist and why they have not been challenged.182
It is worth bearing in mind that the “public” is not some monolithic whole. There are
many possible “publics” that may be interested in a proceeding ranging from friends and family
to large crowds of concerned citizens. The interested public can vary across proceedings, cases,
programs, and agencies. Some proceedings will attract trade press; others are more likely to
garner the interest of larger media outlets. Other groups potentially interested in agency
adjudicative proceedings can include researchers,183 practitioners, law students, court
watchers,184 trade groups, organized labor groups, public interest groups, colleagues, state and
local officials, community members, etc. One interviewee, whose agency conducts hearings in
179

See 20 C.F.R. §§ 702.344, 725.46.
Sant’Ambrogio, supra note 177, at 446–47.
181
See, e.g., ‘Real Housewives’ husband Joe Giudice to be deported, YAHOO! NEWS (Oct. 10, 2018); Mike
Schneider, Judge: SeaWorld trying to comply with safety goals, AP (Aug. 12, 2013).
182
Cf. Christopher B. McNeil, Public Access and Media Rules for Administrative Adjudicators in High-Profile
Hearings, 91 JUDICATURE 298 (2008).
183
See, e.g., Stevens v. Osuna, 877 F.3d 1293 (11th Cir. 2017).
184
See Eagly, supra note 30, at 998.
180

28

courthouses instead of its own offices, even reported public attendance by curious onlookers who
happen to wander into the rooms where agency proceedings take place. In crafting policies on
public access, agencies will need to be mindful of the nature of the public interest that their
proceedings attract.
6.

Role of Public Input in Agency Decisionmaking

The role of public input in agency decisionmaking warrants brief mention. As noted
above, some adjudicative programs incorporate opportunities for public participation ranging
from fairly proceduralized forms of participation such as intervention and amicus briefing to less
formal mechanisms for public input such as comment submission. Open proceedings will be, in
probably most cases, foundational to meaningful public participation.
D.

Departing from a General Presumption

As noted above,185 many agency policies governing public access to adjudicative
proceedings take a two-step approach. After establishing a general presumption that proceedings
should be either open or closed, they then set forth the conditions for departing from that
presumption in specific circumstances. This Subpart addresses (1) conditions for closing
presumptively open proceedings and (2) conditions for opening presumptively closed
proceedings before turning to (3) the specific procedures that agencies have devised for
departing from general presumptions.
1.

Closing Presumptively Open Proceedings

Agency rules reflect several different approaches for closing proceedings, in whole or in
part, which would otherwise be open to public observation. Some leave it to individual
adjudicators to determine when to close presumptively open proceedings in whole or in part
specifying that proceedings are presumptively open “unless otherwise ordered” by the
adjudicator,186 “unless otherwise closed by the adjudicator for good cause shown,”187 or “subject
to restrictions and limitations as may be consistent with orderly procedure.”188
Some rules allow individual adjudicators, in their discretion, to close proceedings, in
whole or in part, in the “public interest” or in the “best interests” of, depending on the agency,
185

See supra note 102.
See, e.g., 5 C.F.R. §§ 831.1106, 2422.18, 2423.30; 13 C.F.R. § 134.222(c); 16 C.F.R. § 3.21; 20 C.F.R. §
802.308; 22 C.F.R. § 1422.9, 1423.14; 29 C.F.R. §§ 102.64, 458.74; 49 C.F.R. § 386.56(b). ACUS’s Model
Adjudication Rules specify: “The hearing must be open to the public, unless the Adjudicator orders otherwise.”
ADMIN. CONF. OF THE U.S, MODEL ADJUDICATION RULES § 300 (rev. 2018).
187
See, e.g., 24 C.F.R. § 26.45; 32 C.F.R. § 200.2015(d); 42 C.F.R. §§ 93.517, 160.534. Regulations implementing
the Program Fraud Civil Remedies Act also follow this model. See, e.g., 5 C.F.R. § 185.132; 6 C.F.R. § 13.3; 7
C.F.R. § 1.329; 10 C.F.R. § 13.3; 10 C.F.R. § 1013.3; 12 C.F.R. § 308.529; 13 C.F.R. § 142.21; 14 C.F.R. §
1264.129; 15 C.F.R. § 25.3; 20 C.F.R. § 355.3; 20 C.F.R. § 498.215; 22 C.F.R. § 35.3; 22 C.F.R. § 224.3; 22 C.F.R.
§ 521.3; 28 C.F.R. § 71.3; 29 C.F.R. § 22.3; 31 C.F.R. § 16.30; 34 C.F.R. § 33.30; 38 C.F.R. § 42.30; 40 C.F.R. §
27.30; 41 C.F.R. § 105-70.030; 43 C.F.R. § 35.30; 45 C.F.R. § 79.30; 45 C.F.R. § 1149.47; 45 C.F.R. § 2554.32; 49
C.F.R. § 31.30.
188
See 27 C.F.R. § 71.78, 771.77.
186

29

one or more of the following: a “party,” a “witness,” the “public,” other “affected persons,” or
“national security.”189 Other policies permit or require partial or total closure for proceedings at
which certain categories of information will be considered, including confidential commercial
information, classified or national security information,190 or other information required by law
to be protected from disclosure. Indeed, many such rules directly reference or cross-reference
FOIA, the Privacy Act, the Sunshine Act, or other sources of law protecting specific records and
categories of information from public disclosure.191
At least one agency has advised adjudicators to be sensitive in cases involving children.
EOIR guidance, for example, notes that “[y]oung children may be reluctant to testify about
painful or embarrassing incidences, and the reluctance may increase with the number of
spectators or other respondents present.” The guidance directs judges to “be sensitive to the
concerns of juveniles if there is a motion to close the hearing.”192
With respect to evidentiary hearings, ACUS recommends that agencies retain the ability
to close specific hearings when the public interest in open proceedings is outweighed by the need
to national security, law enforcement, confidentiality of business documents, or hearing
participants’ privacy.193
2.

Opening Presumptively Closed Proceedings

Agency policies reflect several different approaches for opening proceedings, in whole or
in part, which would otherwise be closed to public observation. Some permit adjudicators to
open presumptively closed proceedings “for good cause shown”194 or admit specific people that
the adjudicator “authorizes”195 or “considers necessary and proper.”196 Others provide for open
hearings at the agency’s direction,197 upon a party’s request,198 or with the parties’ consent.199

189

See, e.g.,4 C.F.R. § 28.57; 5 C.F.R. §§ 1201.52, 2638.504; 8 C.F.R. §§ 1003.106, 1003.27; 10 C.F.R. § 2.328
(NRC); 12 C.F.R. § 10.933, 19.33, 109.33, 263.33, 308.33, 747.33, 1081.300, 1209.12; 24 C.F.R. § 81.84; 28 C.F.R.
68.39; 34 C.F.R. § 32.7; 34 C.F.R. § 32.7(d); 41 C.F.R. § 105-56.007.
190
See, e.g., Memorandum from Thomas G. Snow, Acting Chief Immig. Judge, EOIR, Operating Policies and
Procedures Memorandum 09-01: Classified Information in Immigration Court Proceedings (Feb. 5, 2009),
https://www.justice.gov/eoir/eoir-policy-manual/OPPM00901/download [hereinafter Snow Memorandum]; MSPB
HANDBOOK, supra note 139, at 51–52.
191
See, e.g., 10 C.F.R. § 2.1405; 12 C.F.R. §§ 1081.203, 1081.214, 1081.300; 12 C.F.R. §§ 746.111(e), 746.207; 15
C.F.R. §§ 960.19, 766.13(b); 16 C.F.R. § 16.225; 39 C.F.R. § 3010.303; 40 C.F.R. §§ 22.22, 78.14, 179.81; 46
C.F.R. § 4.09-17; 48 C.F.R. § 6101.21; 49 C.F.R. § 604.40.
192
Memorandum from MaryBeth Keller, Chief Immig. Judge, EOIR, Operating Policies and Procedures
Memorandum 17-03: Guidelines for Immigration Court Cases Involving Juveniles, Including Unaccompanied Alien
Children (Dec. 20, 2017), https://www.justice.gov/eoir/eoir-policy-manual/OPPM01703/download.
193
Recommendation 2021-4, supra note 15, ¶ 3; Recommendation 2016-4, supra note 26, ¶ 18.
194
15 C.F.R. §§ 719.14(b), 785.12(b).
195
10 C.F.R. § 710.26(c).
196
42 C.F.R. §§ 405.1030(a), 405.1851, 422.1046(a), 423.1046(a), 423.2030(a), 498.60(a).
197
12 C.F.R. §§ 19.199; 12 C.F.R. § 263.97; 12 C.F.R. § 623.7; 12 C.F.R. § 1209.75(f).
198
8 C.F.R. §§ 1003.27(c), 1208.30(g)(2)(iii), 1240.33(c)(1); 32 C.F.R. § 199.10(d)(11)(i); 12 C.F.R. §§ 19.199; 12
C.F.R. § 263.97; 12 C.F.R. § 623.7; 12 C.F.R. § 1209.75(f); 37 C.F.R. § 11.44.
199
See, e.g., 8 C.F.R. § 1003.27(c).

30

3.

Procedures for Departing from a General Presumption

Some agencies have adopted specific procedural mechanisms for departing from general
presumptions, such as:
•
•
•
•
•
•
•

a way for a party or parties to request that the adjudicator close or partially close a
presumptively open proceeding (e.g., motion to close hearing, motion for protective
order200) or open a presumptively closed proceeding;201
a way for parties to consent to opening a presumptively open proceeding or waive the
right to a closed proceeding;202
a way for an adjudicator or other agency official to sua sponte open a presumptively
closed proceeding or close a presumptively open proceeding;203
a way for parties or non-parties to object to closing a presumptively open proceeding
or opening a presumptively closed proceeding;204
a requirement that the adjudicator issue a written decision on the request including the
adjudicator’s reasoning and responding to any objections;205
a requirement that a general counsel or chief legal officer certify that the proceeding
may be closed;206 or
a way for unsuccessful requestors or objectors to appeal the adjudicator’s decision on
public access.207

II. OPERATIONALIZING PUBLIC ACCESS TO OPEN PROCEEDINGS
Public access to adjudicative proceedings is not self-executing—that is, agencies must
establish policies or take affirmative steps to facilitate public access to proceedings that, as a
legal matter, are said to be open. The openness of a proceeding depends heavily on the means by
which the agency conducting it facilitate public access.
Consider an extreme example: an ostensibly open proceeding which takes place deep
within a restricted area, without any public notice and with recording or broadcasting strictly
prohibited. As a practical matter, is this proceeding open? It probably depends on the context.
Adjudicative proceedings can be public for different reasons. Some may be open primarily for
the benefit of the private parties involved, so that friends, family, and other sources of moral
support can accompany them. In such cases, a lack of public notice and strict limits on recording
and broadcasting may have limited practical impact on the functional openness of the proceeding
and indeed may balance openness with other policy objectives such as privacy. Other
proceedings are open primarily for the benefit of non-parties who will be directly impacted by

200

See, e.g., Snow Memorandum, supra note 190.
See, e.g., EOIR MANUAL, supra note 127, §§ 4.9, 8.5.
202
See, e.g., id. § 8.5.
203
See, e.g., id.
204
See, e.g., 12 C.F.R. § 19.33(a).
205
See, e.g., 5 C.F.R. § 2638.504.
206
See, e.g., 5 U.S.C. § 552b(f)(1).
207
See, e.g., 24 C.F.R. § 81.84(h)(1).
201

31

the adjudication or for the benefit of a broader general public. In such cases, a lack of public
notice or an out-of-the-way hearing site may substantially affect functional openness.
We identified several examples that reflect how agency practices can affect functional
openness (or at least observers’ perception of openness):
•

Practitioners encouraged an agency to maintain a public hearing docket of upcoming
proceedings, arguing that “‘open to the public’ requires notice to the public.” They
reported limited success with other methods for learning about upcoming hearings,
such as contacting the agency’s public affairs office or submitting FOIA requests.208

•

A researcher reported barriers she and others experienced when accessing the
facilities in which an agency’s adjudicative proceedings take place. Barriers included
security requirements, personnel who were unfamiliar with agency policies regarding
public access to adjudicative proceedings, hearing rooms that could not accommodate
public attendees, and even dress codes. The researcher also reported that public
attendees observed proceedings from a separate space (or remotely), positing that
separation might affect parties’ engagement in their cases and perception of
fairness.209

•

An adjudicator found that a proceeding held in a prison was sufficiently public under
agency rules, even though public attendees had to go through a pre-clearance process
that could take several weeks and required them to submit personal information so
that prison staff could perform a background check. The adjudicator held that “a
hearing is not considered non-public merely because it takes place in a facility that
places some conditions on public access” and that although “barriers to public access
were high, . . . they were not insurmountable: in principle, members of the public
could have attended the hearing had they been especially determined and diligent.”210

•

A voluntary bar association alleged, in a policy brief, that one agency’s virtual
hearings were functionally non-public, that access was restricted to certain physical
facilities where proceedings were conducted, and that “logistical hurdles,” such as
prohibitions on notetaking, impeded public attendees’ “ability to accurately observe
and document the hearings.”211

•

A blogger asked: “Since [an agency’s] hearings are supposed to be public, shouldn’t
these video hearings be available for everyone to (at least) hear?”212

208

John A. Gilbert, Jr. & Andrew J. Hull, DEA Administrative Hearings: “Open to the Public” Requires Notice to
the Public, FDA LAW BLOG (Oct. 26, 2016), https://www.thefdalawblog.com/2016/10/dea-administrative-hearingsopen-to-the-public-requires-notice-to-the-public/.
209
See Eagly, supra note 30, at 994–1000.
210
In the Matter of Gary L. McDuff, 115 S.E.C. Docket 4635 (Dec. 16, 2016).
211
Am. Immig. Lawyers Ass’n, AILA Policy Brief: Public Access to Tent Courts Now Allowed, but Meaningful
Access Still Absent, AILA Doc. No. 20011061 (Jan. 10, 2020), https://www.aila.org/advo-media/aila-policybriefs/public-access-tent-courts-allowed-not-meaningful.
212
John L. Welch, TTAB Posts August 2021 (Video) Hearing Schedule, THE TTABLOG (July 30, 2021),
http://thettablog.blogspot.com/2021/07/ttab-post-august-2021-video-hearing.html.

32

From these and other anecdotes, we can identify four broad categories of issues that
agencies should consider when developing policies to facilitate public access to open
proceedings. Described below, they are: (1) public notice of open proceedings, (2) location and
form of the proceeding, (3) access to recordings and transcripts of open proceedings, and (4)
availability of policies regarding public access to agency adjudicative proceedings.
As a legal matter, case law reveals very little about the practical aspects of public access
to agency adjudicative proceedings, and statutes only rarely structure the ways in which agencies
operationalize public access to open proceedings. Most notable, of course, is the Government in
the Sunshine Act. The Act generally requires agencies to provide public notice of meetings,
including adjudicative proceedings, that are subject to the Act and promptly make a transcript, a
recording, or minutes publicly available in an easily accessible location.213 FOIA and the Privacy
Act presumably bear on the disclosure of records that document or summarize the conduct of
adjudicative proceedings, the vast majority of which are not subject to the Sunshine Act. And
some agencies may be subject to program-specific requirements. The Secretary of
Transportation, for example, may only issue licenses for the ownership, construction, or
operation of a deepwater port after public notice and at least one public hearing held in “each
adjacent coastal State.”214 Within the requirements of these laws, agencies have adopted their
own policies and practices, as described in the following sections.
A.

Public Notice of Open Proceedings

Statutes, including the Sunshine Act and some program-specific statutes, require certain
agencies to provide advance public notice of certain adjudicative proceedings. Some agencies
not subject to statutory requirements have also adopted their own policies requiring public notice
of open proceedings.
There are three key components to public notice policies: (1) the location of the notice,
(2) the content of the notice, and (3) the timing of the notice. The Sunshine Act, for example,
requires agencies to provide public notice of covered meetings at least a week beforehand. The
announcement, which is also published in the Federal Register, must specify (a) the time, place,
and subject matter of the meeting; (b) whether the meeting will be open or closed to the public;
and (c) contact information for an agency official responsible for answering questions about the
meeting.215
1.

Location of the Notice

Although the Federal Register is the federal government’s official journal and a
predictable location for public notice,216 it may not be a publication that people who are
particularly interested in or affected by an adjudication are likely to monitor.217 ACUS
213

5 U.S.C. § 552b(e), (f)(2).
33 U.S.C. § 1504(g); see also 42 U.S.C. § 9112(g).
215
5 U.S.C. § 552b(e).
216
See, e.g., 33 C.F.R. § 148.230(a); 40 C.F.R. § 78.14(a)(10).
217
See Admin. Conf. of the U.S., Recommendation 2013-5, Social Media in Rulemaking, ¶ 3, 78 Fed. Reg. 76269,
76271 (Dec. 17, 2013); Admin. Conf. of the U.S., Recommendation 68-4, Consumer Bulletin, 1 ACUS 12 (1968).
214

33

recognized this in Recommendation 71-6, urging agencies, at least for proceedings in which
there are opportunities for public participation, to “utilize such methods as may be feasible, in
addition to the Federal Register’s official public notice, to inform the public and citizen groups
about proceedings (including significant applications and petitions) where their participation is
appropriate.” Methods that ACUS identified are:
factual press releases written in lay language, public service announcements on
radio and television, direct mailings and advertisements where the affected public
is located, and express invitations to groups which are likely to be interested in
and able to represent otherwise unrepresented interests and views.218
This remains a very good list, although developments in technology and communications since
1971 have added new options and perhaps diminished the importance of others. A contemporary
list, based on current agency practices, should include:
•
•
•
•
•
•
•
•
•

posting in a physical location at an agency facility,219
posting in a physical location that affected non-parties are likely to see (e.g., a
bulletin board at a jobsite),220
posting in an appropriate location on an agency website,221
publication in an agency digest,222
a press release,223
social media,224
publication in a media outlet that interested persons are likely to monitor,225
email to persons who have opted to receive notice (e.g. by signing up for a mailing
list on an agency website),226 and
direct outreach to persons or groups that are likely to be interested in or affected by
the proceeding.227

ACUS also recommended that agencies consider publishing a monthly bulletin that provides
notice of upcoming proceedings.228 Indeed, several agencies and agency adjudication offices
now maintain schedules of upcoming proceedings on their websites, either as a separate schedule
218

Recommendation 71-6, supra note 12.
See, e.g., 30 C.F.R. §§ 722.15(d), 843.15(d); 49 C.F.R. § 1113.1(a).
220
See, e.g., 29 C.F.R. § 2200.7.
221
See, e.g., 49 U.S.C. § 60117(b)(2); 49 C.F.R. § 1113.1(a).
222
See, e.g., 17 C.F.R. § 201.200(e).
223
OCC News Release 2021-96, OCC to Hold Hearing on Charges Against Former Wells Fargo Bank, N.A.
Executives; Agency Seeks Prohibition Order, Orders to Cease and Desist, and Civil Money Penalties (Sep. 10,
2021), https://www.occ.treas.gov/news-issuances/news-releases/2021/nr-occ-2021-96.html.
224
Cf. EPA OFFICE OF WATER, EPA 823-F-19-005, MODERNIZING PUBLIC HEARINGS FOR WATER QUALITY
STANDARD DECISIONS CONSISTENT WITH 40 CFR 25.5 13 (June 2019), https://www.epa.gov/sites/default/files/201905/documents/ modernizing_public_hearings_for_wqs_decisions_consistent_with_40_cfr_25.5_.pdf [hereinafter
MODERNIZING PUBLIC HEARINGS].
225
See, e.g., 30 C.F.R. § 722.15(d), 843.15(d); 40 C.F.R. § 142.33(a).
226
See, e.g., 40 C.F.R. § 403.11(b)(1)(i)(A).
227
See, e.g., id.
228
Recommendation 71-6, supra note 12.
219

34

or as part of general calendar of upcoming events. They include the Environmental Appeals
Board (EAB),229 Federal Energy Regulatory Commission (FERC) Office of ALJs,230 Patent Trial
and Appeal Board (PTAB),231 Securities and Exchange Commission,232 and Trademark Trial and
Appeal Board.233
The optimal location (or locations) for public notice will, naturally, vary across agencies,
programs, and individual cases according to factors such as the level of public interest in a
typical proceeding or specific case, the specific audience the agency is trying to reach, and the
importance of public input or participation for agency decisionmaking.
2.

Content of the Notice

Certain types of information are particularly useful for agencies to include when they
provide advance notice of open proceedings. As described above, the Sunshine Act requires that
notices include the time, place, and subject matter of the meeting and contact information for an
agency official who can answer questions about the meeting. (Sunshine Act notices must also
indicate whether covered meetings are open or closed to the public.) ACUS provided a similar
list in Recommendation 71-6, urging agencies to include the following information about
upcoming proceedings in their monthly bulletins:
(a) The name and docket number or other identification of any scheduled
proceeding in which public intervention may be appropriate;
(b) A brief summary of the purpose of the proceeding;
(c) The date, time and place of the hearing; and
(d) The name of the agency, and the name and address of the person to contact if
participation or further information is sought.234
It may also be useful for agencies to include any instructions for accessing the
proceeding. Members of the public who wish to attend proceedings in person may need to
coordinate with agency staff to gain access to an agency facility. They may need to budget time,
and have documentation in hand, to undergo a security check. Consider the following:
•

The website of the Environmental Appeals Board, for example, advises public attended
that, “[f]or security purposes . . . advance notice is required to gain entry into the EPA
building where the Courtroom is located.” Public attendees must notify the clerk of the

229

Upcoming Oral Arguments, EPA, https://yosemite.epa.gov/oa/EAB_Web_Docket.nsf/Upcoming+Oral+
Arguments?OpenView (last visited Oct. 13, 2021).
230
Administrative Litigation, FERC, https://www.ferc.gov/administrative-litigation-0 (last visited Oct. 13, 2021).
231
Hearing Schedules (PTAB), USPTO, https://www.uspto.gov/patents/ptab/hearings/hearing-schedules-ptab (last
visited Oct. 13, 2021).
232
Upcoming Events, SEC, https://www.sec.gov/news/upcoming-events#upcoming_events_public_hearings (last
visited Oct. 13, 2021).
233
TTAB hearings, USPTO, https://www.uspto.gov/trademarks/ttab/ttab-hearing-schedules (last visited Oct. 13,
2021).
234
Recommendation 71-6, supra note 12.

35

EAB at least a week beforehand.235
•

CBCA advises attendees to allow time to “go through security.”236

•

PTAB’s guide to oral proceedings informs public attendees that they must bring a valid
form of government-issued identification and arrive at least 30 minutes before the
scheduled proceeding.237

•

EOIR informs members of the public that they do not notify immigration courts in
advance of their visit but encourages them to “contact EOIR’s Office of Communications
and Legislative Affairs to coordinate your visit.”238

•

For immigration proceedings that take place in Department of Homeland Security (DHS)
detention facilities, EOIR notes on its website that it “does not control entry to the
detention facilities in which immigration courts are located” and advises public attendees
to “contact DHS or the detention facility you plan to visit to learn of any security
clearance requirements for entry to the building.”239 The immigration courts’ practice
manual notes that “individuals may be required to obtain advance clearance to enter the
facility” and may not be allowed bring electronic devices with them.240

Similar principles can apply for remote attendance. Is preregistration required? Must public
attendees provide a name, an email address, or other personal information to observe the
proceeding remotely?
3.

Timing of the Notice

Notice policies should be reasonably calculated to provide interested persons sufficient
time to make arrangements to attend the proceeding. The Sunshine Act establishes a one-week
minimum. For proceedings in which there are opportunities for public participation, ACUS
suggested in Recommendation 71-6 that agencies provide initial notice “as far in advance of
hearing as possible in order to allow affect groups an opportunity to prepare.”241
The optimal timing for public notice will depend on factors such as whether typical
public attendees would need to travel to the proceeding and whether public participation is
permitted or encouraged. For example, a proceeding that the public can only attend in person at
an agency’s headquarters in Washington, D.C., probably requires more advance notice than a
proceeding that interested persons can attend remotely using a personal electronic device. And a
235

EAB MANUAL, supra note 126, at 10.
Decorum, CBCA, https://www.cbca.gov/board/Decorum.html (last visited Oct. 13, 2021).
237
USPTO, THE PATENT TRIAL AND APPEAL BOARD: GUIDE TO ADMINISTRATION OF ORAL HEARINGS BEFORE THE
PATENT TRIAL AND APPEAL BOARD 8 (Oct. 15, 2021), https://www.uspto.gov/sites/default/files/documents/
PTAB_hearings_guide_101520.pdf [hereinafter PTAB GUIDE].
238
Observing Immigration Court Hearings, EOIR (Feb. 2017), https://www.justice.gov/eoir/observing-immigrationcourt-hearings.
239
Id.
240
EOIR MANUAL, supra note 127, § 4.14.
241
Recommendation 71-6, supra note 12.
236

36

proceeding in which public input is integral to decisionmaking may warrant more advance notice
than a proceeding in which public access is peripheral or unrelated to decisionmaking.
B.

Location and Form of Public Attendance: In-Person or Remote

Agencies conduct proceedings all over the place—at their Washington headquarters; in
their regional and local offices; in courthouses and other federal, state, local, and tribal
government facilities; even in hotel ballrooms, convention centers, conference rooms, and
theaters across the country depending on the circumstances. The spaces in which in-person
proceedings take place vary widely in terms of their public accessibility and capacity to
accommodate public observers. As to the location of in-person proceedings, a few statutes and
some agency policies dictate the state or area in which proceedings must take place. Highervolume adjudication programs often have established geographical jurisdictions. And in many
cases, an adjudicator sets the location for a proceeding. Under all of these approaches, the
location is typically one that is convenient for the agency (e.g., headquarters), convenient for the
parties (e.g., within a certain distance of a party’s residence or place of business), or somehow
connected to the facts of the case.242
Through the mid-twentieth century, oral proceedings were essentially synonymous with
in-person proceedings. Beginning as early as the 1980s, agencies began experimenting with
proceedings in which one or more people participated remotely: first by telephone,243 then by
video teleconferencing,244 and more recently by web conferencing in so-called “virtual”
proceedings.245 Virtual proceedings have become especially widespread during the COVID-19
pandemic, as ACUS examined in an earlier project.246 The defining characteristic of fully virtual
hearings is that they take place in a virtual space without a clear physical nexus, requiring access
to a suitable internet connection and personal device. An earlier report to ACUS,247 and
interviews conducted for this report, suggest that virtual proceedings will remain commonplace
even after the pandemic subsides, at least for informal conferences and less complicated hearings
that agencies can effectively administer virtually.
In-person proceedings and proceedings in which one or more people participate remotely
can both pose challenges for public access. But for purposes of this report, we will speak of inperson public access, in which the agency provides a location for public observation (which may
or may not be the same location as the adjudicator or parties), and remote public access, in which
interested persons can observe a proceeding live from a location of their choosing online or by
telephone.

242

See supra note 214; see also 8 U.S.C. § 1324a(e)(3)(B), 1324c(d)(2)(B); 30 C.F.R. § 843.15 (“[t]he hearing shall
be held at or reasonably close to the mine site . . . or at any other location acceptable to the Office and the person to
whom the notice or order was issued”).
243
See Recommendation 86-7, supra note 41, ¶ 10.
244
See Recommendation 2014-7, supra note 14; Recommendation 2011-4, supra note 14.
245
See Recommendation 2021-4, supra note 15.
246
Id.
247
Fredric I. Lederer & the Ctr. for Legal & Ct. Tech., Analysis of Administrative Agency Adjudicatory Hearings
Use of Remote Appearances and Virtual Hearings 15 (June 3, 2021) (report to the Admin. Conf. of the U.S.).

37

Agencies can facilitate live in-person and remote public access in a number of ways:
•
•
•

In-Person Public Access
Attendees observe the proceeding in the
space from which the adjudicator
conducts it.
Attendees observe the proceeding in the
space from which a party remotely
participates.
Attendees observe a live video or audio
stream of the proceeding in a space
provided by the agency.248

•
•
•
•

Remote Public Access
Attendees observe a live video or audio
stream of the proceeding through a
commercial platform such as YouTube.
Attendees observe a live video or audio
stream of the proceeding through a
private hosting platform.
Attendees use a dial-in number to listen
to the proceeding.249
Attendees observe the proceeding by
directly joining the videoconference or
teleconference in which it takes places.

Agencies can also manage public access in different ways. In some contexts, members of the
public who wish to observe a proceeding, in person or remotely, will need to make arrangements
with the agency beforehand. In other contexts, members of the public can simply show up.
All of these arrangements have their benefits and costs for public access, which agencies
must consider as they develop a policy that makes sense for the programs they administer and the
cases they adjudicate. In addition to administrative costs and available resources, factors to
consider include: (1) accessibility for public attendees, (2) scalability, (3) the balance between
transparency and privacy, (4) impact on participants’ behavior, (5) impact on the ability to share
sensitive materials, and (6) impact on adjudicators’ ability to regulate proceedings. We discuss
these factors in detail below. Of course, public access is far from the only factor agencies must
consider when they determine best practices for conducting proceedings, and they will need to
weigh openness against the other applicable legal requirements and policy objectives specific to
their programs.
1.

Accessibility for Public Attendees

One obvious benefit of remote public access is that people interested in attending a
proceeding can do so from a location of their choosing without incurring the costs and time
associated with travel to and from a physical location. Members of the public who wish to attend
a proceeding in person may need to make special arrangements for transportation, time off work,
or childcare. As ACUS has noted, these costs can disproportionately affect members of
traditionally underserved communities.250
On the other hand, remote public access requires that observers have a
telecommunications connection to reliably access the proceeding and an electronic device from
248

See, e.g., MSPB HANDBOOK, supra note 139, at 28.
See, e.g., FERC OFFICE OF ADMINISTRATIVE LAW JUDGES, REMOTE HEARING GUIDANCE FOR PARTICIPANTS 9
(July 13, 2020), https://www.ferc.gov/sites/default/files/2020-07/Remote%20Hearing%20Guidance%20for%20
Participants.pdf.
250
Recommendation 2021-4, supra note 15.
249

38

which to observe it; in-person public access only requires that observers show up. This may or
may not be a practical issue, depending on the nature of the proceeding and the resources
available to would-be public attendees.
Agencies that conduct adjudicative proceedings in which there are opportunities for
public participation may wish to consult best practices for public events in other contexts.
Particularly helpful is an EPA guide to Modernizing Public Hearings for Water Quality Standard
Decisions.251 For both in-person and remote public access, agencies may need to take steps under
the Rehabilitation Act252 and other laws and policies to ensure people with disabilities can
effectively observe open proceedings.
2.

Scalability

As ACUS recognized in its very first recommendation, the spaces in which proceedings
take place can come in all shapes and sizes.253 This is as it should be. Many proceedings will
involve no more than an agency official and a single party, or an official conducting a
proceeding virtually or by telephone, and attract no public interest. It would be wasteful and
unnecessary, in such cases, to require that the proceeding take place in a hearing room
accommodating hundreds of observers and could negatively affect case processing. On the other
hand, agencies would impose a functional limit on public access were they to conduct
proceedings in which there is a great deal of public interest in small offices without an option for
remote public attendance.
Some agencies make provisions in their policies for expanding in-person public access in
high-profile cases or cases that ultimately attract more public attention than expected. The MSPB
Judges’ Handbook, for example, advises adjudicators who are “aware of substantial interest in a
particular case” to “make arrangements for a hearing room that will accommodate a reasonable
number of persons.”254 And the PTAB states in its guide to oral hearings that the agency can
usually arrange for “overflow rooms,” from which “the public will have the ability to see and
hear the oral hearing in its entirety.”255
A potential benefit of remote public access is that it is easily scalable. Agencies can
easily, securely, and now inexpensively use remote means of public access to accommodate
hundreds or thousands of public attendees as needed.
3.

Cameras in the Courtroom: Effects on Transparency, Privacy, and Participants’
Behavior

Open proceedings are all, as a legal matter, open to public observation. As a practical
matter, however, the ways in which agencies facilitate public access to open proceedings can
affect the number of people who ultimately attend them.
251

MODERNIZING PUBLIC HEARINGS, supra note 224.
29 U.S.C. § 701 et seq.
253
See Recommendation 68-1, supra note 11.
254
MSPB HANDBOOK, supra note 139, at 53.
255
PTAB GUIDE, supra note 237, at 8.
252

39

Consider the experience of the courts, especially state courts, during the COVID-19
pandemic. To provide public access to proceedings conducted virtually or in courthouses that
were closed to the public, some courts began livestreaming their proceedings online, often using
commercial platforms such as YouTube. Few people had previously attended many of these
proceedings in person because of the costs associated with in-person access. Although these
proceedings had always been doctrinally open, as a practical matter, they were fairly obscure.256
Remote public access significantly decreased the costs associated with public observation. Public
proceedings which had been only sparingly attended in person suddenly had hundreds or
thousands—occasionally millions—of spectators.257
On the one hand, livestreaming judicial proceedings in this way has been a boon for
transparency. Testifying before a House subcommittee on the federal courts’ experiences during
the pandemic, Melissa Wasser, Policy Analyst for the Reporters Committee for Freedom of the
Press, urged Congress to “[p]rovide support and guidance to allow courts at all levels to
broadcast or stream live proceedings in future crises and during normal operation” and “[e]nsure
uniform and effective public notice of remote court proceedings during COVID-19 and
beyond.”258
On the other hand, some have accused courts of essentially televising people’s “darkest
hours.”259 What previously required prior awareness of a proceeding and enough interest to
warrant a trip to the courthouse is now immediate and fairly costless to access from anywhere.
This has resulted in a new form of online entertainment built on viral videos of odd moments in
virtual court proceedings.260 There is an entire subreddit, r/ZoomCourt, dedicated to “Videos of
Crazy Zoom Court videos.”261 (Its logo is a screenshot of the lawyer who, in a virtual state-court

256

Alicia L. Bannon & Douglas Keith, Remote Court: Principles for Virtual Proceedings During the COVID-19
Pandemic and Beyond, 115 NW. U. L. REV. 1875, 1900 (2021); Cf. DOJ v. Reporters Comm. for Free Press, 489
U.S. 749 (1989).
257
“[T]he people sitting on the stiff wooden benches in physical courtrooms usually have a significant interest in a
case (a big enough interest to travel to the courtroom and pay for transportation and potentially child care, for
instance). When justice is livestreamed, that calculation is different, which puts courts in the complex position of
guaranteeing public access in the vast majority of cases, while also protecting privacy as appropriate.” Mia
Armstrong, Justice, Livestreamed, SLATE (Aug. 14, 2020), https://slate.com/technology/2020/08/zoom-courtslivestream-youtube.html
258
Testimony of Melissa Wasser, Policy Analyst, The Reporters Committee for Freedom of the Press, Before the
U.S. House of Representatives Committee on the Judiciary, Subcommittee on Courts, Intellectual Property, and the
Internet, Federal Courts During the COVID-19 Pandemic: Best Practices, Opportunities for Innovation, and
Lessons for the Future (June 25, 2020) https://www.rcfp.org/wp-content/uploads/2020/06/6-24-20-ReportersCommittee-House-testimony-about-pandemic-court-access.pdf.
259
See, e.g., Gita Jackson, Zoom Court Videos Are Making People’s Darkest Hours Go Viral, VICE (Mar. 18, 2021),
https://www.vice.com/en/article/z3va9x/zoom-court-videos-are-making-peoples-darkest-hours-go-viral.
260
See Armstrong, supra note 257; Shelly Banjo, Digital Courtrooms Put Justice on YouTube, Zoom, BLOOMBERG
(Apr. 7, 2020), https://www.bloomberg.com/news/newsletters/2020-04-07/digital-courtrooms-put-justice-onyoutube-zoom; Jackson, supra note 259; Eric Scigliano, Zoom Court Is Changing How Justice Is Served, THE
ATLANTIC (Apr. 13, 2021), https://www.theatlantic.com/magazine/archive/2021/05/can-justice-be-served-onzoom/618392/.
261
Videos of Crazy Zoom Court videos, REDDIT, https://www.reddit.com/r/ZoomCourt/ (last visited Oct. 13, 2021).

40

proceeding that went viral, famously insisted he was “not a cat.”262) It is unclear that this is the
type of transparency that open proceedings are intended to effect.
This is partly a new iteration of an old debate about cameras in the courtroom, which has
been a deeply contested issue for nearly a century.263 The American Bar Association passed
Judicial Canon 35 in 1937, declaring:
The taking of photographs in the courtroom, during sessions of the court or
recesses between sessions, and the broadcasting or televising of court proceedings
are calculated to detract from the essential dignity of the proceedings, distract the
witness in giving his testimony, degrade the court and create misconceptions with
respect thereto in the mind of the public and should not be permitted.264
Eighteen years later, the Supreme Court found that televising a state-court criminal proceeding
violated a defendant’s right to due process.265 But in a bit of foreshadowing, the Court also noted
that the constitutional calculus could change if the day came “when television will have become
so commonplace an affair in the daily life of the average person as to dissipate all reasonable
likelihood that its use in courtrooms may disparage the judicial process.”266 A quarter-century
later, the Court allowed greater experimentation with broadcast coverage of trials.267 The Judicial
Conference has considered the question of cameras in the courtrooms at least a half dozen
times.268 (The current policy allows judges to authorize broadcasting, televising, recording, or
taking photographs only in limited circumstances.269) Congress has repeatedly considered the
issue too.270 Several bills currently pending would, if passed, expand the media’s ability to cover
federal court proceedings.271
Traditionally, one concern has been that the presence of cameras and the potential for
broadcasting to expands the potential viewership may affect participants’ behavior. Attorneys
may grandstand. Witnesses may hear other participants’ testimony, or they may be less
forthcoming in front of an audience. Parties may perform for the camera. Parties may be
intimidated, and adjudicators may misinterpret their nervousness as untruthfulness. Heightened
awareness of public scrutiny may affect decisionmaking. Another concern has been that sound
bites and video clips may be taken out of context or misused. A third concern has been that
media professionals, in particular, would take up physical space and disrupt proceedings with the
262

Aaron Feis, Zoom filter transforms lawyer into cat during court hearing, N.Y. POST (Feb. 9, 2021),
https://nypost.com/2021/02/09/zoom-filter-transforms-lawyer-into-cat-during-court-hearing/
263
Frank Lomonte, Cameras Might Alter Courtroom Behavior: Maybe That’s the Point, LITIGATION 22 (Spring
2021).
264
Albert E. Blashfield, The Case of the Controversial Canon, ABA J., May 1962, at 429.
265
Estes v. Texas, 381 U.S. 532, 595–96 (1965).
266
Id.
267
Chandler v. Florida, 449 U.S. 560 (1981).
268
History of Cameras in Courts, U.S. COURTS, https://www.uscourts.gov/about-federal-courts/judicialadministration/cameras-courts/history-cameras-courts (last visited Oct. 13, 2021).
269
Id.
270
SARAH J. ECKMAN, CONG. RESCH. SERV., R44514, VIDEO BROADCASTING FROM THE FEDERAL COURTS: ISSUES
FOR CONGRESS 24–27 (updated Oct. 28, 2019).
271
See supra note 4.

41

cameras, microphones, and lighting needed to record or broadcast proceedings. This has become
less of a concern as recording and broadcasting technologies have become less obtrusive.272
Some of these concerns are reflected in current agency policies. The MSPB Judges’
Handbook, for example, encourages adjudicators, before granting permission to outside entities
to broadcast agency proceedings, to consider whether broadcasting proceedings could lead
participants to “grandstand” or “posture” for the camera.273 Model Instructions for Broadcast
Coverage in the MSPB Judges’ Handbook contain extensive guidance on equipment, personnel,
sound, light, location, and movement.274
ACUS considered these issues almost 50 years ago, concluding in Recommendation 721, Broadcast of Agency Proceedings, that:
•

Audiovisual coverage should be encouraged in “adjudications in which a public
interest standard is applied to authorize service or determine its level or quality,”
which “normally involve issues of broad public interest.”

•

Audiovisual coverage should be excluded in “adjudicatory proceedings involving the
rights or status of individuals (including those of small corporations likely to be
indistinguishable in the public mind from one or a few individuals) in which
individual past culpable conduct or other aspect of personal life is a primary subject
of adjudication and the person in question objects to coverage.”

•

In other adjudicatory proceedings, agencies “should determine whether the drawbacks
of audiovisual coverage outweigh the advantages of informing the public. When
audiovisual coverage is excluded or restricted, the agency should state the reasons for
such exclusion or restriction on the record of the proceeding.”

ACUS also recommended that “[i]n any public proceedings a witness should have the right, prior
to or during his testimony, to exclude audiovisual coverage of his testimony.”275 At least one
agency, DOL, implemented these recommendations in its regulations.276
But ACUS issued Recommendation 72-1 in a very different time, and the nature and
scale of broadcasting and media consumption have changed dramatically. Five decades ago,
“broadcast of agency proceedings” meant media professionals setting up lighting and cameras in
a hearing room and filming proceedings in which there was significant public interest for
playback on the nightly news. Today, agencies themselves are almost certainly the most frequent
broadcasters (or webcasters) of their own proceedings. As agencies increasingly rely on virtual
proceedings, some form of broadcasting is practically inevitable. Excluding audiovisual coverage

272

ECKMAN, supra note 270, at 19–24.
MSPB HANDBOOK, supra note 139, at 52–53.
274
Id. at 122–24.
275
Recommendation 72-1, supra note 13.
276
29 C.F.R. § 2.10 et seq.
273

42

of virtual proceedings functionally closes them to public observation, no matter whether they are
doctrinally open.
The question is increasingly how and where proceedings should be broadcast, and who
should broadcast them, not whether they can be broadcast in the first place. Many courts have
turned to commercial video sharing platforms, especially YouTube, to livestream proceedings
during the COVID-19 pandemic.277 There are obvious benefits to using YouTube; it is
inexpensive, familiar, and easy to use. But YouTube is also a commercial enterprise designed to
publicize content for monetary gain without clear regard for agencies’ ethical concerns.278 It is a
website that many people visit for entertainment rather than civic purposes, and one that defaults
to allowing people to engage with the videos they watch and other observers through public
commenting—a form of public participation which is probably not especially valuable in the
context of agency adjudication.279
It is also difficult to control what people do with proceedings that are webcast. Many
federal agencies have policies on the books requiring participants and public attendees to seek
authorization before recording or using recordings of proceedings. It is fairly simple to enforce
these rules for in-person attendees, but it is easy for remote observers to surreptitiously record,
repurpose, and share webcasted content.280 Interviewees for this report tended to agree that it
would be impossible, in most cases, to enforce current rules banning the unauthorized recording
of agency proceedings.
There are certainly concerns in the federal and state courts over the possible effects of
expanded viewership and unauthorized and misused recordings.281 To gauge the level of concern
in federal agencies, we asked interviewees about their experiences with remote public access,
particularly during the uptick in virtual hearings in response to public health measures during the
COVID-19 pandemic. Although some interviewees voiced concerns, few reported seeing any
significant increase in the number of public attendees as a result of the shift to virtual hearings.
(This stands in contrast with the experience of some state courts, as referenced earlier, which did
see increased viewership.282) No interviewees had any knowledge of instances in which someone
used an unauthorized recording for an inappropriate purpose. Still, it remains possible that these
sorts of concerns, even if they have not yet been substantiated in the federal administrative
context, could still impact the behavior of individual participants in agency proceedings.

277
Several states, notably Michigan and Florida, have launched “Virtual Courtroom Directories,” which allow
observers to see which courts statewide are currently in session and click a button to watch proceedings live. See
MiCOURT Virtual Courtroom Directory, MICHIGAN COURTS, https://micourt.courts.michigan.gov/
virtualcourtroomdirectory/ (last visited Oct. 13, 2021); Florida Virtual Courtroom Directory, FLORIDA COURTS,
https://courtrooms.flcourts.org (last visited Oct. 13, 2021).
278
See Jackson, supra note 259; Scigliano, supra note 260.
279
While public participation can be important in certain adjudicative programs, there are probably better ways than
a YouTube comments section to encourage and facilitate it.
280
Scigliano, supra note 260.
281
See Christopher L. Dodson, Scott Dodson & Lee H. Rosenthal, The Zooming of Federal Civil Litigation,
JUDICATURE 12, 17 (Fall 2020–Winter 2021).
282
See supra notes 257.

43

Ultimately, agencies will need to tailor how they provide remote public access to open
proceedings to account for the unique circumstances of the programs they administer, including
the nature of the cases they decide, public interest in individual proceedings, and the people and
interests they serve. It may be appropriate, even beneficial, to use platforms like YouTube to
broadcast proceedings that “involve issues of broad public interest,” to quote Recommendation
72-1, or appellate presentations on important points of law. It may be less appropriate, even
unfair, to require applicants for public benefits to state their claims on what amounts to
international television. Other options may be more appropriate in these cases: use private
hosting platforms (which are widely available), provide a secure location where virtual
proceedings can be observed in person, require interested persons to pre-register and use a
unique passcode to observe proceedings online, or provide a telephone call-in number instead of
livestreaming video. To choose an appropriate approach, agencies will need to carefully balance
legitimate interests in privacy and transparency along with other legal requirements and policy
objectives specific to the programs they administer.
Regardless of the approach they adopt, agencies may wish to take steps to ensure that
public attendees are aware of restrictions on recording and broadcasting. When agencies do use
public hosting services, they should consider the benefits and drawbacks of enabling public
commenting. Above all, agencies should carefully consider what they do after livestreaming
proceedings. Are they recorded (and, relatedly, are they records for purposes of federal records
management laws)? Do they remain freely accessible online, or is access limited after the
proceeding has ended?
4.

Impact on Adjudicators’ Ability to Regulate Proceedings

In the most common form of in-person public access, public attendees observe a
proceeding in the same physical space where the proceeding takes place. As in any public
proceeding, there are concerns that some attendees may take actions that are, intentionally or
unintentionally, disruptive. Although interviewees for this report reported only isolated incidents,
disruption remains a possibility.
Several agencies, including some at which proceedings attract comparatively greater
public interest, have published instructions on decorum for in-person attendees. They address
matters such as:
•
•
•
•

the role of observers and participation by public attendees;283
processes for obtaining or reserving seats in a hearing room;284
hearing room security;285
talking, gesturing, and making facial expressions;286

283

See, e.g., 5 C.F.R. § 1206.12; 40 C.F.R. § 72.67(c).
See, e.g., EOIR MANUAL, supra note 127, § 8.5.
285
See, e.g., Memorandum from William R. Robie, Chief Immig. Judge, EOIR, Operating Policies and Procedures
Memorandum 88-9: Courtroom Security (Nov. 29, 1988), https://www.justice.gov/eoir/eoir-policy-manual/
OPPM08809/download.
286
See, e.g., PTAB GUIDE, supra note 237, at 8; CBCA, supra note 236.
284

44

•
•
•
•
•
•
•
•
•

possession and use of cell phones and other electronic devices generally;287
use of cell phones and other electronic devices to record or transmit open
proceedings;288
setup and use of audiovisual equipment;289
possession of weapons;290
presence of food or drink in hearing rooms;291
on-time arrival;292
entry and exit from hearing rooms during proceedings;293
appropriate attire;294 and
consequences for improper behavior.295

A few agencies have developed policies to account for high-profile cases, which may be
the exception rather than the norm.296 The MSPB Judges’ Handbook notes, for example: “If a
hearing is open but the appeal has attracted the public’s attention, the [administrative judge] may
be able to avoid the possibility of disruption by having the public attendees view the hearing on
video from another room at the [office], if one is available.”297
Several agencies have also published specific rules or instructions specific to media
professionals, including DOL (whose regulations implement ACUS Recommendation 72-1),298
EOIR,299 Food and Drug Administration,300 FERC,301 and MSPB.302 These materials typically
include policies on recording and broadcasting open proceedings, capturing and using still
images of open proceedings, reserving seats for media professionals, and coordinating with
agency communications offices. Other agencies grant adjudicators significant discretion to
regulate media coverage.303
Interviews conducted for this report suggest that agencies, like courts, continue to
consider how remote public attendance, especially by video, affects expectations for public
287

See, e.g., 5 C.F.R. § 1201.52(b); PTAB GUIDE, supra note 237, at 8; EOIR MANUAL, supra note 127, § 4.13;
CBCA, supra note 236.
288
See, e.g., 5 C.F.R. § 1201.52(b); PTAB GUIDE, supra note 237, at 8; EOIR MANUAL, supra note 127, §§ 4.13,
8.5; CBCA, supra note 236.
289
See, e.g., 29 C.F.R. § 2.16.
290
See, e.g., PTAB GUIDE, supra note 237, at 8; EOIR MANUAL, supra note 127, § 4.14; Observing Immigration
Court Hearings, supra note 238; EAB Manual, supra note 126, at 10; CBCA, supra note 236.
291
See, e.g., PTAB GUIDE, supra note 237, at 8; CBCA, supra note 236.
292
See, e.g., CBCA, supra note 236.
293
See, e.g., PTAB GUIDE, supra note 237, at 8; CBCA, supra note 236.
294
See, e.g., PTAB GUIDE, supra note 237, at 8; CBCA, supra note 236.
295
See, e.g., PTAB GUIDE, supra note 237, at 8.
296
See McNeil, supra note 182; Christopher B. McNeil, Public Access and Media Rules for Administrative
Adjudicators in High-Profile Hearings, 91 JUDICATURE 298 (2008).
297
MSPB HANDBOOK, supra note 139, at 28.
298
29 C.F.R. § 2.10 et seq.
299
EOIR MANUAL, supra note 127, § 4.9, 8.5.
300
21 C.F.R. § 10.200 et seq.
301
18 C.F.R. § 388.105.
302
MSPB HANDBOOK, supra note 139, at 122–25.
303
See, e.g., 15 C.F.R. § 904.204(d); 43 C.F.R. § 4.807(c); 49 C.F.R. § 1113.3(d).

45

attendees. It can be easier in some ways to regulate the behavior and conduct of remote
attendees. After all, there is no mute button for in-person attendees.
In other ways, it may be harder for agencies to regulate the behavior and conduct of
remote attendees. We heard some concerns that virtual proceedings could be vulnerable to
incidents of Zoombombing, in which individuals disrupt videoconferencing sessions by sharing
lewd or offensive comment. But no one interviewed for this study reported any instances of it
occurring. Besides, the threat of Zoombombing can be easily managed by directing public
attendees to a webcast instead of inviting them into the videoconferencing session in which a
proceeding takes place, or by requiring public attendees to register and provide contact
information before joining the session.
Furthermore, it is almost certainly harder for agencies to enforce rules prohibiting the
unauthorized recording of proceedings against remote attendees. If such rules are intended to
guard against the misuse of recordings of agency proceedings, it is unclear that they are truly
necessary. No one interviewed for this study reported any instances in which unauthorized
recordings of proceedings were posted online, misleadingly doctored, used to intimidate or
harass, or otherwise exploited.
C.

Access to Recordings and Transcripts of Open Proceedings

Closely related to the question of public access to agency adjudicative proceedings is
public access to recordings and transcripts of those proceedings. In some sense, public access to
recordings and transcripts could be an effective alternative to in-person or remote public access.
But several interviewees, including some agency officials, felt that simultaneity is an important
aspect of public access and that post-proceeding disclosure of recordings or transcripts may not
be an adequate substitute for live observation.
As discussed above, the Sunshine Act mandates the public availability of recordings,
transcripts, or minutes for covered meetings. Agencies subject to the Sunshine Act typically
make recordings or transcripts of open, covered meetings available on their websites.304 Some
agency-specific statutes also provide for public access to transcripts or recordings associated
with adjudicative proceedings.305 Many agencies have also adopted rules providing for public
access to such materials.306 When agencies do transcribe adjudicative proceedings, the Federal
Advisory Commission Act (FACA) requires that they provide copies of the transcripts to “any
person, at actual cost of duplication.”307
Agency rules frequently specify that members of the public can request a copy of a
transcript (or recording) from the agency or from a court reporter who transcribes (or records)
304

Oral Arguments, supra note 125.
Cf. 12 U.S.C. § 1818(u)(3) (“A transcript of public hearings shall be made available to the public pursuant to
section 552 of title 5.”).
306
See, e.g., 5 C.F.R. §§ 2422.18(d), 2423.30(f); 10 C.F.R. §§ 2.1405(b), 2.327(b); 22 C.F.R. §§ 1422.9(a),
1423.14(b); 40 C.F.R. § 209.28(a); 40 C.F.R. § 124.12(d).
307
5 U.S.C. App. 11. Although FACA principally governs the operation of advisory committees, “agency
proceedings,” as used in the Act, means agency processes for rulemaking, adjudication, and licensing. Id. 11(b).
305

46

under contract with the agency. 308 Some agencies provide in their rules that transcripts and/or
recordings will be made freely available for public inspection, often in a physical location or
online (e.g., a docket system).309 This is consistent with ACUS Recommendation 2017-1,
Adjudication Materials on Agency Websites, which encouraged agencies to “consider providing
access on their websites to decisions and supporting materials . . . issued and filed in adjudicative
proceedings in excess of the affirmative disclosure requirements of [FOIA].” 310 In determining
which materials to post online, Recommendation 2017-1 advised agencies to “implement[]
appropriate safeguards to protect relevant privacy interests” and consider the following factors:
a.
b.
c.
d.

the interests of the public in gaining insight into the agency’s adjudicative
processes;
the costs to the agency in disclosing adjudication materials in excess of
FOIA’s requirements;
any offsetting benefits the agency may realize in disclosing these
materials; and
any other relevant considerations, such as agency-specific adjudicative
practices.311

These factors may be useful for agencies to consider in shaping policies on public access to
recordings and transcripts of open proceedings. With respect to appellate proceedings
specifically, ACUS has recommended:
Regardless of whether the Government in the Sunshine Act (5 U.S.C. § 552b)
governs their appellate review system, agencies should consider announcing,
livestreaming, and maintaining video recordings on their websites of appellate
proceedings (including oral argument) that present significant legal and policy
issues likely to be of interest to regulated parties and other members of the
public.312
As discussed before, however, agencies should be mindful of the ways in which affirmative
online disclosure may affect parties’ privacy. Affirmative online disclosure may be more
appropriate in some contexts than in others. Before providing public access to transcripts or
recordings of adjudicative proceedings, agencies should make sure to redact information
protected under the Privacy Act or other federal laws and policies.

308

See, e.g., 5 C.F.R. § 1201.53(c); 12 C.F.R. § 1016 C.F.R. § 1025.47(a); 16 C.F.R. § 3.44(a); 17 C.F.R. §
10.65(a); 24 C.F.R. § 26.23(c); 34 C.F.R. § 101.91; 28 C.F.R. § 68.48; 36 C.F.R. § 1150.92; 45 C.F.R. § 81.91; 46
C.F.R. § 502.213.
309
See, e.g., 5 C.F.R. §§ 2422.18(d), 2423.30(f); 10 C.F.R. §§ 2.1405(b), 2.327(b); 22 C.F.R. §§ 1422.9(a),
1423.14(b); 40 C.F.R. § 209.28(a); 40 C.F.R. § 124.12(d).
310
Admin. Conf. of the U.S., Recommendation 2017-1, Adjudication Materials on Agency Websites, 82 Fed. Reg.
31039 (July 5, 2017). The Recommendation was limited to “proceedings in which a statute, executive order, or
regulation mandates an evidentiary hearing.” Id.
311
Id., ¶ 1.
312
Recommendation 2020-3, supra note 31, ¶ 20.

47

D.

Availability of Agency Policies on Public Access to Adjudicative Proceedings

Policies on public access to agency adjudicative proceedings are intended to regulate an
important way in which agencies, the media, and general public interact with each other. The
substance of such policies is important. But their effectiveness also depends, in large part, on
their availability to the adjudicators, agency staff, media professionals, parties, representatives,
and others who rely on them. Clear policies on public access can help improve public
understanding of agency processes, including which proceedings are open and which are not;
ensure members of the public, including media professionals, know how to attend open
proceedings and understand what is expected of them; ensure consistent implementation by
agency adjudicators and staff; flag instances of noncompliance with established policies; and
identify areas for improvement.
Agencies should carefully consider the types of information on public access that
different audiences will need access to. Topics that agencies may wish to include in published
rules or policies may include:
•
•
•
•
•
•
•

presumptions favoring open or closed proceedings and conditions for departing from
those presumptions in specific circumstances, including any procedures for doing so;
requirements for advance notice of open proceedings, including the location, content, and
timing of such notice;
policies on and instructions for in-person and/or remote public access;
decorum expectations and standards of conduct for public attendees;
special rules for the media;
special rules for managing high-profile proceedings; and
policies on and instructions for accessing recordings and transcripts.

The specific topics that agencies ultimately address in published rules or policies may depend on
their intended audience (e.g., media professionals313) and will vary across programs and agencies
according to their unique circumstances.
Agencies should also carefully consider which publications will most effectively
communicate rules and policies on public access to the internal and external audiences that
participate in or attend adjudicative proceedings. Some principles, such as presumptions favoring
open or closed proceedings, will be appropriate for codification in the Code of Federal
Regulations. Others, such as specific instructions for observing proceedings online or accessing
government facilities, may not. Agencies can clarify or supplement codified rules through other
materials including benchbooks, practitioner guides, descriptive text on agency websites, online
events calendars and specialized dockets, Federal Register notices, notices issued in individual
cases and made publicly available in online docket systems, and press releases.

313

See McNeil, supra note 182; McNeil, supra note 296.

48