Most of administrative law scholarship, and certainly the most widely cited and acclaimed scholarly contributions to the field, appear to be color-blind.[1] Most leading administrative law decisions seem to be so as well. Should we as scholars and thinkers in the field stand chastened by such a state of affairs? What role should race assume in administrative […]
In Waterfront Commission of New York Harbor v. Murphy, 2020 WL 3025215 (3d Cir. June 5, 2020), rev’g, 429 F.Supp.3d 1 (D.N.J. 2019), the Third Circuit decided that a state could terminate an agency created pursuant to federal law, and transfer the agency’s functions to itself. Say what? OK, it is not quite that simple. […]
This post discusses the media plaintiffs’ prospect in WP Co. LLC v. U.S. Small Business Administration, seeking information about government disbursement of funds under two programs being used to address the severe economic dislocations attendant the coronavirus pandemic. “In war, truth is the first casualty.” Aeschylus “Not Now!:” FOIA Requests and the Small Business Administration’s […]
This post is the second in a two-part series exploring recent proposals or innovations to extend public access obligations to bi-state or multi-state agencies created to administer interstate compacts, i.e., compact agencies. Compact agencies have traditionally occupied a lacunae in which neither federal nor state freedom of information (“FOI”) laws applied. In Part I, I […]
States use interstate compacts to address various multi-state regional problems.[1] Sometimes compact signatories create a “compact agency” to administer the compact. Must such agencies provide access to their records? Every state public records law grants the public access to the records of state agencies. The federal Freedom of Information Acts (“FOIA”) imposes similar public access […]
Agencies can withhold documents pursuant to Freedom of Information Act’s (FOIA) deliberative process privilege only if the documents are both predecisional and deliberative.[1] If an agency refuses to apply a court of appeals decision outside of that Circuit, that is, if it engages in “intercircuit nonacquiescence,”[2] when is “the decision” to do so made? In […]
Cooperative federalism often involves information sharing between different levels of government. What are the implications of such information sharing for application of federal and state freedom of information/public records statutes? When private entities are required to share information with state governments under a federal mandate, is release of that information governed by the federal Freedom […]
Pursuant to the Congressional Review Act (“the CRA”), Congress can adopt, with the President’s concurrence, a resolution disapproving an agency rule within 60 days of notification that the rule has been adopted. Section 801(b)(2) of the CRA provides that disapproval resolutions preclude the agency from adopting “a new rule that is substantially the same as” […]
Summary: This post discusses a recent decision holding that agency official’s web browsing histories, generated automatically by a web browser, are not “agency records” under FOIA. “You are what you read. The information that you input into your mind informs your thinking patterns, and it influences . . . the decisions you make, the work […]
The Congressional Review Act (“the CRA”)[1] establishes an expedited legislative process for preventing final agency rules from going into effect. It provides a sixty-day period for Congress to adopt and the President to sign a resolution disapproving an agency rule. 5 U.S.C. §802(a). If a disapproval resolution is adopted, the agency can neither “reissue [the […]
Several states and municipalities, including the City of Philadelphia, have adopted laws prohibiting employers from asking prospective employees for their wage and salary history.[1] Such statutes and ordinances are designed to attack persistent wage disparities between White and non-White as well as male and female employees. The Greater Philadelphia Chamber of Commerce challenged the Philadelphia’s […]
Today the Third Circuit issued an opinion regarding application of exhaustion requirements to Lucia v. SEC, 138 S. Ct. 2044 (2018), challenges to Social Security Administration ALJs – Cirko v. Commissioner, 2020 WL 370832. Lucia decided that the SEC’s ALJs were officers of the United States, and thus that their appointments were unconstitutional because the […]
This two-part series discusses Smith v. U.S. Immigration & Customs Enforcement, involving ICE’s policy for responding to FOIA requests made by fugitive aliens. My first post discussed the policy’s inconsistency with FOIA Exemption 7(A). This post discusses whether the “fugitive disentitlement doctrine.” The Fugitive Disentitlement Doctrine In Ortega-Rodriguez v. U.S., 507 U.S. 234 (1993), the […]
This two-part series discusses Smith v. U.S. Immigration & Customs Enforcement, involving ICE’s policy for responding to FOIA requests made by fugitive aliens. This post discusses the policy’s inconsistency with FOIA Exemption 7(A), which allows agencies to withhold law enforcement records that “could reasonably be expected to interfere with enforcement proceedings.” The second post discusses […]
Summary: This post discusses a recent decision holding that agency official’s web browsing histories, generated automatically by a web browser, are not “agency records” under FOIA. “You are what you read. The information that you input into your mind informs your thinking patterns, and it influences . . . the decisions you make, the work you […]