Washington, DC — As more and more Trump initiatives are challenged in court, the administrative record supporting those decisions is increasingly at issue. To reduce their legal vulnerability, federal agencies are purging administrative records to remove evidence that does not support the agency decision or reveals internal dissent or controversy, according to a new legal analysis by Public Employees for Environmental Responsibility (PEER).
“Everyone is entitled to their own opinion, but the Trump folks want their own set of facts,” stated PEER Executive Director Jeff Ruch. “The administrative record should offer more than an unobstructed view of the official talking points.”
Federal law requires agencies to compile and share “the whole record” to explain the basis for their actions. Yet the statute does not define the term. Not only are there varying court opinions outlining what the record should contain, but agencies themselves have taken different positions on what should be included.
For example, the National Oceanic & Atmospheric Administration guidance states that the administrative record “consists of all documents and materials directly or indirectly considered by agency decision-makers and includes evidence contrary to the agency's position.”
By contrast, the U.S. Environmental Protection Agency takes the position that “materials containing solely the policy advice, recommendations, or opinions of EPA or other federal government staff that were generated as part of the internal deliberative process for formulating the EPA decision are not generally part of the administrative record.”
Under President Trump, agencies are now excluding more materials. Citing unpublished Department of Justice guidance, the U.S. Fish & Wildlife Service, in a September 6, 2018 confidential guidance document, advises “an AR [administrative record] associated with litigation on an agency decision …should not include deliberative documents.,. [because] including them in the administrative record would inhibit agency decision-making.”
“It is oxymoronic that an administrative record to enable a court to gauge the quality of official decision-making should exclude all deliberative documents,” added Ruch, arguing the scope of an administrative record should not vary from agency to agency or from administration to administration. “These restrictions serve largely to omit inconvenient facts from consideration.”
PEER is urging that the next session of Congress act to statutorily clarify what is meant by the whole record to prevent agencies from excising factual information, expert opinions, and important intra-and interagency communications, among other items, from the record.
“Congress should curb the official embrace of alternative facts,” concluded Ruch. “The whole record should be the whole record.”
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See PEER survey of court interpretations and agency guidance
View the Fish & Wildlife Service guidance
Read PEER’s suggested statutory clarification