FISH AND WILDLIFE SERVICE
|To:||All Fish and Wildlife Service Employees|
|From:||Director /s/ Jamie Rapport Clark FEB 14, 2000|
|Subject:||Compiling an Administrative Record|
An administrative record is the paper trail that documents our decision-making
process and the basis
for our decisions. An incomplete record may affect our ability to defend our decisions if we are
challenged in court.
All managers as well as any employee who could be involved in establishing
record must read and follow the attached guidance from the Solicitor's Office and the Department
of Justice. If you have questions about administrative record requirements, contact your Solicitor's
We will incorporate the attached guidance into the Fish and Wildlife
is also available as a Word Perfect file named guidance.wpd.
You can copy it to your hard disk and open the file in Word Perfect.
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FISH AND WILDLIFE SERVICE
JAN 7, 2000
|To:||Director, U.S. Fish and Wildlife Service|
Fish Wildlife and Environmental Protection Branch
/s/ Pete Raynor
|Subject:||Guidance on Compiling an Administrative Record|
The requirement to provide an administrative
record in the course of litigation comes from the
Administrative Procedure Act, which states that judges must review agency actions based on the
"whole record." As explained further in the attached guidance, this has been interpreted to mean
all documents and materials directly or indirectly considered by persons involved in the decision-
making process. Thus, the record should include:
* All documents and materials
that were before or available to persons involved in the
decision at the time the decision was made.
* All documents that were considered or relied upon by persons involved in the decision.
* Documents that relate to both the substance and procedure of making the decision.
* All pertinent documents regardless
of whether they favor the decision that was finally
made, favor alternatives other than the final decision, or express criticism of the final
decision. Documents should never be withheld just because they reflect negatively on the
decision that was finally made.
* Documents that may end up
later being redacted or removed from the record on the basis
The record should not include:
* Documents associated with, but not part of, the decision-making process, such as fax cover sheets.
* Various versions of a document
where the differences among the drafts reflect minor
editing changes. Include drafts, however, where hand-written notes or changes from one
version to the next reflect the evolving process.
* E-mails and other correspondence
that discuss the agency action generally but do not
reflect decision-making considerations by staff (for example, communications between
biologists whose work may be affected by the outcome of the decision-making process
but who are not involved in the decision itself).
Providing a thorough and accurate
record to the court allows the Service to show a judge that it
fully considered all relevant factors during the decision-making process. While a judge may
allow the Service to later supplement a record with documents that were overlooked during the
initial compilation, we lose credibility when we have to add documents that should have been
included from the beginning. At worst, an incomplete record may affect the Service's ability to
defend its final decision by signaling to the court that the agency's decision was not based on a
reasoned consideration of all important information.
The importance of a complete and
accurate record underscores the need not to wait until a
lawsuit is filed before collecting all documents before the Service during the decision-making
process. Any and all documents that are considered should be collected and organized as the
decision-making process evolves. In the new world of e-mail and the Internet, correspondence
that reflects the decision-making process should be printed out and stored with memos, research
papers, and other documents. Where options are weighed or decisions made during meetings
and conference calls, a document such as a memo to the file will memorialize how the decision
was reached and show that the agency fully considered all aspects of the situation before making
the decision. Finally, the person assigned the responsibility of compiling and organizing the
administrative record should remember to check with all other persons and offices - including
the Washington office - that may have documents that should be included in the record.
Putting together a good administrative
record is complicated, and questions will always arise
over whether or not a particular document belongs in the record. We strongly recommend that
managers and anyone who could be involved in assembling an administrative record read this
memo and the attached guidance from the Department of Justice. That guidance was put
together specifically because of the importance of building a good administrative record when
defending agencies such as the Service. It is imperative that Service staff understand and follow
this guidance. Any Service staff that have questions about administrative record requirements in
general or any document in particular should contact the Solicitor's Office for assistance.
cc: Regional Solicitors
is also available as a Word Perfect file named usdjguid.wpd.
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Dated: January 1999
Guidance to Federal Agencies on Compiling
The Administrative Record
Under the Administrative Procedure Act (APA), a court reviews an agency's
action to determine
if it was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."
5 U. S.C. § 706(2) (A). In making this determination, a court evaluates the agency's whole
administrative record. The administrative record is the paper trail that documents the agency's
decision-making process and the basis for the agency's decision.
The APA governs judicial review of a challenged agency decision. However,
specify what documents and materials constitute an administrative record, e.g., 42 U.S.C.
§ 7607(d)(7)(A) (provision states what materials will constitute the record for the purpose of
judicial review of certain enumerated types of rulemaking issued under the Clean Air Act); 42
U.S. C. § 9613(j) and (k) (CERCLA). At the outset, be sure to determine whether a statute other
than the APA applies in the case. In addition, regulations may govern how to assemble a record.
See, e.g. , 40 C.F.R. 300.800 -300.825 (CERCLA); 40 C.F.R. Part 24 (RCRA Corrective
Action). See also FRAP Rules 16 and 17 (record on review or enforcement and filing of the record).
The purpose of this memorandum is to provide guidance to agencies in
administrative record of agency decisions other than a formal rulemaking or an administrative
adjudication. Optimally, an agency will compile the administrative record as documents and
materials are generated or received in the course of the agency decision-making process. The
record may be a contemporaneous record of the action. However, the administrative record may
be compiled by the agency after litigation has been initiated. An agency employee should be
designated to be responsible for compiling the administrative record. That individual will be
responsible for certifying the administrative record to the court. S/he may keep a record of where
s/he searched for the documents and materials and who was consulted in the process of compiling
the administrative record.
It is critical for the agency to take great care in compiling a complete
administrative record. If the
agency fails to compile the whole administrative record, it may significantly impact our ability to
defend and the court's ability to review a challenged agency decision.
1. General Principles for Compiling the Administrative Record
The administrative record consists of all documents and materials
directly or indirectly
considered by the agency decision maker in making the challenged decision. It is not limited to
documents and materials relevant only to the merits of the agency's decision. It includes
documents and materials relevant to the process of making the agency's decision.
* Include documents and materials whether they support or do not
the final agency decision.
* Include documents and materials which were before or available
decision-making office at the time the decision was made.
* Include documents and materials that were considered by or relied
* Include documents and materials that were before the agency
at the time of
the challenged decision, even if they were not specifically considered by the
final agency decision-maker.
* Include privileged and non-privileged documents and materials.
2. Where To Find The Documents
and Materials That Comprise The Administrative
The agency should identify an agency employee
to be responsible for compiling the
administrative record. The identified agency person should be responsible, careful, and prepared
to provide an affidavit. S/he should keep a record of where s/he searched for documents and who
was consulted in the process. S/he should conduct a thorough search for the purpose of compiling
the whole record, including the following:
* Contact all agency people, including program personnel and attorneys,
involved in the final agency action and ask them to search their files and
agency files for documents and materials related to the final agency action.
Include agency people in field offices.
* Contact agency units other than program personnel, such as congressional
and correspondence components.
* Where personnel involved in the final agency action are no longer
employed by the agency, search the archives for documents and materials
related to the final agency action. A former employee may be contacted for
guidance as to where to search.
* Determine whether there are agency files relating to the final
If there are such files, search those files.
* If more than one agency was involved in the decision- making
lead agency should contact the other agencies to be sure the record
contains all the documents and materials that were considered or relied on
by the lead agency.
* Search a public docket room to determine whether there are relevant
documents or materials.
3 . What Documents and Materials To Include In The Administrative Record
a) Types of materials:
* Documents that are to be included
in the administrative record
should not be limited to paper but should include other means of
communication or ways of storing or presenting information,
including e-mail, computer tapes and discs, microfilm and
microfiche. See 36 C.F.R. Chapter XII, subchapter B (electronic
records). The term should include data files, graphs, charts and
handwritten notes. Do not include personal notes, meaning an
individual's notes taken at a meeting or journals maintained by an
individual, unless they are included in an agency file. An agency file
is determined by agency control, possession and maintenance.
b) Kinds of Information:
* Include all documents and materials
prepared, reviewed, or received by
agency personnel and used by or available to the decision-maker, even
though the final decision-maker did not actually review or know about the
documents and materials.
* Include policies, guidelines, directives and manuals.
* Include articles and books. Be
sensitive to copyright laws governing
* Include factual information or data.
* Include communications the agency
received from other agencies and from
the public, and any responses to those communications. Be aware that
documents concerning meetings between an agency and OMB should be
included but may qualify, either partially or fully, for the deliberative
* Include documents and materials
that contain information that support or
oppose the challenged agency decision.
* Exclude documents and materials
that were not inexistence at the time of
the agency decision.
* As a general rule, do not include
internal "working" drafts of documents
that were or were not superseded by a more complete, edited version of the
same document. Generally, include all draft documents that were circulated
for comment either outside the agency or outside the author's immediate
office, if changes in these documents reflect significant input into the
decision-making process. Drafts, excluding "working" drafts, should be
flagged for advice from the DOJ attorney or the Assistant United States
Attorney (AUSA) on whether: 1) the draft was not an internal "working"
draft; and 2) the draft reflects significant input into the decision-making
* Include technical information,
sampling results, survey information,
engineering reports or studies.
* Include decision documents.
* Include minutes of meetings or transcripts thereof.
* Include memorializations of telephone
conversations and meetings, such as a
memorandum or handwritten notes, unless they are personal notes.
4. How To Handle Privileged Documents and Materials
Generally, the administrative record includes
privileged documents and materials and
documents and materials that contain protected information. However, once the record is
compiled privileged or protected documents and materials are redacted or removed from the
The agency should consult with the agency counsel
and the DOJ attorney or the AUSA as
to the type and the extent of the privilege(s) asserted. Be sensitive to the relevant privileges and
prohibitions against disclosure, including, but not limited to, attorney-client, attorney work
product, Privacy Act, deliberative or mental processes, executive, and confidential business
If documents and materials are determined to
be privileged or protected, the index of
record must identify the documents and materials, reflect that they are being withheld, and state
on what basis they are being withheld.
5. How to Organize the Administrative Record
* Organize the documents and materials in a logical and accessible way.
* Organize the documents and materials
in chronological order and/or by
* Documents and materials that
do not fit into a chronological order may be
separated by category, e.g., internal policies, guidelines or manuals.
* After a DOJ attorney or an AUSA
has had the opportunity to review the
administrative record for completeness and organization, it may be useful
to bates stamp or to number each item. A DOJ attorney or an AUSA may
review the documents and materials the agency decided were not contained
in the administrative record.
* Prepare an index to the administrative record.
* Index should identify each document
and material by the bates stamp
number or document number and a brief description of the document or
material, e.g., "memorandum dated June 5, 1997 from Mary Smith to EPA
Administrator Jones regarding June 6, 1997 meeting agenda." If a
document or material is being withheld based on a privilege or prohibition,
state the privilege or prohibition.
* The agency must certify the administrative
record.1 Certificate language
should reflect how the agency person who was responsible for compiling
the record has personal knowledge of the assembly of the administrative
record. Attached are sample certificates. Neither a DOJ attorney nor an
AUSA should certify the record to avoid having them be a possible witness
in the case.
* The DOJ attorney or the AUSA
must consult the local rules of the court in
which the matter is pending to determine how to file the administrative
record with the court. If the local rules are silent on this issue, the DOJ
attorney or the AUSA can address the issue with the parties and the court.
For example, it may be appropriate to file only the index with the court and
to provide the parties with copies of the index and the opportunity to
review the record or to file the parts of the record that the parties will rely
on as grounds for their motions for summary judgment. The U.S.
Attorney's Office in the jurisdiction in which the matter is pending should
always be consulted.
1 If the agency fails to certify the record,
the government may not be able to file a motion
for summary judgment.
6. Important For Court To Have The Whole Administrative Record
* A court reviews the agency action
based on the whole administrative
record before the agency at the time the decision was made.
* The whole administrative record
allows the court to determine whether the
agency's decision complied with the appropriate APA standard of review.
* All agency findings and conclusion and the basis must appear in the record.
The administrative record is the agency's evidence that its decision and its decision-making comply with relevant statutory and regulatory requirements.
* A court may remand the matter
where the agency's reasoning for its
decision is not contained in the administrative record,
7. Consequences of Incomplete Administrative Record
* If record is incomplete, government
may be permitted to complete the
record but, by doing so, you also may raise questions about the
completeness of the entire record.
* If the court decides the record
is not complete, it should remand the matter
to the agency. However, it may allow extra-record discovery, including
depositions of agency personnel, and may allow court testimony of agency
* Generally, although it may vary
from circuit to circuit, courts will allow
discovery when a party has proffered sufficient evidence suggesting:
-- bad faith;
-- improprieties may have influenced the decision-maker; or
-- agency relied on substantial materials not included in the record.
A party must make a strong
showing that one of these exceptions applies
before a court will allow extra-record inquiry.
8. Supplementation of the record
* When the administrative record fails to explain the agency's
frustrating judicial review, the court may allow the agency to supplement the
record with affidavits or testimony.
* Be aware once the government supplements with affidavits or
party might depose your witnesses and/or submit additional affidavits or testimony.
* Be aware if agency counsel becomes a potential witness, it may
be appropriate to
screen the agency counsel from participation in the litigation. ABA Model Rule of
Professional Responsibility 3.7.
When an agency must defend a final agency action
before a court, it should take great care
in preparing the administrative record for that decision. It is worth the effort and may avoid
unnecessary and/or unfortunate litigation issues later on.
This memorandum provides only internal Department
of Justice guidance. It does not
create any rights, substantive or procedural, which are enforceable at law by any party. No
limitations are hereby placed on otherwise lawful prerogatives of the Department of Justice or any
other federal agency.