Notice & Comment

Author: Bernard Bell

Notice & Comment

Dead-Hand Control and “Magical Passwords”: Center for Investigative Reporting v. DOJ (Part II)

Can Congress enact a general statute and impose upon future Congress’ the obligation to either expressly acknowledge the general statute before abrogating it or expressly state their desire to depart from it?  This question has reemerged recently primarily due to Judge Bumatay’s dissent in Investigative Reporting v. Department of Justice, 982 F.3d 668 (Dec. 3, […]

Notice & Comment

NTSB Accident Investigations and the “Consultant’s Corollary”

“From tragedy we draw knowledge to protect the safety of us all.”[1] When an aviation accident or a significant highway, marine, railroad, pipeline, or hazardous-materials accident occurs, the National Transportation Safety Board (“NTSB”) springs into action.  See, 49 U.S.C. § 1131 (listing types of accidents within the NTSB’s jurisdiction). The NTSB investigates the accident’s causes, […]

Notice & Comment

“Boiling the Ocean”? Cause of Action Institute v. Department of Justice

Is a memorandum or communication encompassing several distinct subjects one “record” or multiple “records”? Thus, in response to a Freedom of Information Act (“FOIA”) request, can an agency redact as non-responsive the portions of the memorandum/communication involving subjects outside the scope of a FOIA request? I. The Concept of “Scoping” Imagine, a State Department cable […]

Notice & Comment

Spadaro v. Customs & Border Patrol: Visa Revocations, Transparency, and Textualism

Summary: This post highlights the Second Circuit’s recent decision allowing the State Department to withhold records regarding visa revocations from Freedom of Information Act (“FOIA”) requesters.  The post then critiques the Court’s problematic use of textualist methodology, noting that it presumes imprecise Congressional drafting, In Spadaro v. United States Customs and Border Protection,[1] the Second […]

Notice & Comment

The Court Where It Happened: U.S. v. Bolton

After a difficult 17-month tenure as President Trump’s third National Security Advisor, John Bolton was ready to talk about his experiences, including presidential conduct he found “deeply disturbing.” But he was not eager to talk with any of the nation’s elected representatives who were participating in impeachment proceedings — proceedings to determine whether the President’s […]

Notice & Comment

Race and Administrative Law, by Bernard Bell

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 […]

Notice & Comment

The First Casualties of Emergency Relief Programs

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 […]

Notice & Comment

Compact Agencies and Transparency (Part II)

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 […]

Notice & Comment

Compact Agencies and Transparency (Part 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 […]

Notice & Comment

The Deliberative Process Privilege and Nonacquiescence: Hall & Associates v. EPA

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 […]

Notice & Comment

Asking An Agency to Make A Silk Purse Out of A Sow’s Ear?: Union Pacific v. Pipeline & Hazardous Materials Safety Administration (Part I)

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 […]