Administrative Record ANITA BILBAO,

Administrative Record

ANITA BILBAO,

OR-931 Forest Management Advisor

CELLINA BURKE,

OR-933 Litigation Specialist

Administrative Record - OBJECTIVES

At the end of this module, participants should be able to:

Describe the importance of a project/administrative record.

State your role and responsibility related to building the project/administrative record. Identify the proper use of specialist reports and how that relates to you.Use references provided to answer questions.

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What’s so important about the Administrative Record?

In Administrative Procedure Act (APA*) cases, the Administrative Record is the

only

witness.

In the United States, the APA establishes a process for the federal courts to review agency decisions.

*APA or public law 79-404 became law it 1946 - it is a key piece of administrative law.

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APA Standard of Review

A court can set aside agency action that it finds to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

The court should not substitute its opinion for that of the agency.

A deferential standard of review—but BLM must earn the deference.

What’s so important about the Administrative Record?

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How does BLM win under the APA?

Articulate a rational connection between…

(1) the facts found

and (2) the conclusions reached. Persuasively argue the reasonableness of BLM’s action by pointing to administrative record evidence.

Plaintiffs

who bring APA lawsuits can get attorneys fees under

the Equal

Access to Justice Act (EAJA

).

Fees come out of agency’s budget, usually at the State Office level (may vary according to program).

What’s so important about the Administrative Record?

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What

isa

record?

44

U.S.C. Chapter 33 Sec.

3301d“…including all books, papers, maps, photographs, machine readable materials, or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States Government under Federal law or in connection with the transaction of public business… as evidence of the organization, functions, policies, decisions, procedures, operations or other activities of the Government or because of the informational value of the data in them

.”

Administrative

Record

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Administrative

Record

What is a record?

Examples: Contracts

Operator Files

Grazing Permits

Official Directives

Management Plans

Specialist Reports

Master Title Plats Official Correspondence FOIA & Privacy Act RequestsMemorandums of Understanding

Email

and email attachments documenting

b

usiness

p

rocess & decisions

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Administrative Record

What is a non-record?

36

C.F.R §

1220.14

“…those Federally owned informational materials that do not meet the statutory definition of records (44 U.S.C. 3301) or that have been excluded from coverage by the definition. Excluded materials are extra copies of documents kept only for reference, stocks of publications and processed documents, and library or museum materials intended solely for reference or exhibit

.”

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Administrative Record

What is a non-record?

Examples:

Personal Papers

Memory Joggers

Information Papers

Training Materials

Employees Notebook

Draft & working papers

Copies of Correspondence

Extra Copies of documentsHandwritten minutes taken at a meeting after they have been formalized & distributed

Administrative Record

BLM records are

:

Factual

Analysis: identify methodology, provide science, link facts and data to conclusions (do not speculate).

Meeting notes: include date; attendee names and titles; subjects covered; proposals, agreements, and recommendations to the decision maker or other factual aspects documenting steps BLM took and considerations BLM made during project.

Records in general: include date stamps & signatures on formal correspondence; complete transmission information on “to/from” lines on emails; all attachments to emails; thorough phone record logs etc.

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Administrative Record

BLM records are

:

Professional

Content in records (particularly email): separate personal from professional components; refrain from editorializing or adding personal opinions (as opposed to professional conclusions based on facts/data).

If you wouldn’t want your words to show up in a newspaper or court of law, then you shouldn’t include them in the records you are creating.

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Administrative Record

BLM records are

:

Relevant

Content in records pertain to the project and decision to be made.

Documents that demonstrate a flaw in analysis, support a difference methodology or science, include alternative proposals, demonstrate a difference of opinion are RELEVANT documents to be included in the record. The project record should also include BLM’s response or explanation regarding these types of differences or discrepancies.

REMEMBER, there is no privilege for what we wish we had not written or said…BLM’s credibility may be compromised if multiple records aren’t factual, professional, and relevant.

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Administrative Record –

What is the Project Record?

The PROJECT RECORD provides the supporting rationale behind a manager’s project DECISION:

Contains the complete “story” of the agency decision making process, including options considered and rejected by the agency;

Includes relevant and substantive information that was presented to, relied upon, or reasonably available to the decision maker at the time the BLM decision is made;

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Administrative Record –

What is the Project Record?

Establishes that the agency complied with relevant statutory, regulatory, and agency requirements; and

Demonstrates that the agency followed a

reasoned decision-making process.

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The following terms are often used synonymously:

Project File Project Record

Case File Decision File

In this training we use the term “PROJECT RECORD”. BLM’s project record can be further formatted into an “ADMINISTRATIVE RECORD” to be filed in litigation.

Administrative Record

There is one official PROJECT RECORD, maintained in the District/Field Office.

a paper record

BLM policy is to maintain records as hard copy paper (exceptions may include GIS data; metadata; maps etc.)records added at the time they are generated (a “living” project record – created real time)actual documents and data

OR

a copy of that data if it is in a field notebook or on a survey sheet etc. on file in another location.

IF IT ISN’T IN THE RECORD, IT DIDN’T HAPPEN!15

Administrative Record

The PROJECT RECORD can later be translated into an ADMINISTRATIVE RECORD as the result of a legal challenge.

Generally, the administrative record mirrors the project record (but it can be different).

Work with your OSO program lead and Solicitors to identify scope of record.

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Administrative Record –

ROLES & RESPONSIBILITIES

The

Field Manager

or

Authorized Officer establishes:Lead roles for the project, including PROJECT RECORD COORDINATOR or LEAD (person who knows the underlying project issues).Expectations of all Interdisciplinary (ID) Team members related to record keeping.

MECHANISMs: project initiation letter, records management strategy, employee performance elements and evaluation, modeling/rewarding behavior they seek from their employees.

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Administrative Record –

ROLES & RESPONSIBILITIES

The BLM District

Project Record Coordinator or Lead

is responsible for:

Providing all team members with:the expected organization

the expectation for what information is required to be included

the standard for what information individual documents should contain

Maintaining and compiling the Project Record (incoming records from the ID Team)

Planning for shared success

Identifying privileged documents

Privacy ActAttorney Client and/or Attorney Work ProductDeliberativeIndexing the project record

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Administrative Record –

ROLES & RESPONSIBILITIES

The

Interdisciplinary Team (ID Team)

is responsible for:

Being factual and professional.

Providing relevant data/facts to back up the conclusions you make in your analysis.

Producing the records you create for inclusion in the project record (discuss drafts).

Asking the Project Record Coordinator and/or Field Manager for needed clarification regarding the record.

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Administrative Record –

ROLES & RESPONSIBILITIES

INTERDISCIPLINARY TEAM (ID Team)

meeting notes should be identifiable and include:meeting date

attendee names and titles

list of the subjects covered

proposals, agreements, recommendations of the IDT and/or meeting outcomes REMEMBER, you are documenting steps BLM took and considerations BLM made during the development of the project. Decisions are for the decision maker.

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Administrative Record –

FOCUS DISCUSSION

NEPA vs. Other Information

To “specialist report” or not….

What is the intention behind a specialist report?

What are District approaches to using specialist reports?

Pros/ConsHow have the Courts treated these issues?

REGARDLESS of your District’s approach…

what’s important is that IF you use specialist reports, you USE THEM PROPERLY (same professionalism and level of integrity as writing as in EA; information tracks with that in EA and record as a whole).

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Administrative Record - OBJECTIVES

REVIEW:

Why is the project and/or administrative record so important?

What is your role and responsibility related to building the project record?What is the proper use of specialist reports and how that relates to you?

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Administrative Record

Where can I go for HELP?

District Project Record Coordinator or LeadDistrict Records Lead

State Office Litigation Specialist

(Administrative Record Toolkit & Liaison to Contractors)

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What does it contain and where can I get it?

Question & Answer sheet

When do you initiate development of a project record?

How should you order documents in the Project Record?

What info should the index include?

Who does the attorney client privilege review? When does the project record close?

Administrative Record Toolkit

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Administrative Record Toolkit

Guidance from Office of the Solicitor

Tips for Compiling an Administrative Record

Standardized Guidance on Compiling a Project Record & an Administrative Record

Examples of: Index and protocols for indexing (e.g. how to enter document descriptions) Planning record outline and schema coding

Tracking calendar (project r

ecord

to

administrative record)

You can obtain copies of the AR Toolkit from

Cellina Burke – OSO, Litigation Specialist