If the Public Is Not Aware of Agency Guidance, Does It Exist?, by Levon Schlichter
This blog post is one in a series of posts discussing the 2016 Report to the President-Elect that American Bar Association’s Section of Administrative Law and Regulatory Practice issued shortly before the presidential election. In this post, I will discuss the recommendation that the President ensures that all agency guidance documents are made available online in a timely and easily accessible manner. A number of administrative law scholars and experts will be doing short posts on other recommendations contained in the Report. Here is the Report’s recommendation on posting agency guidance online (footnotes omitted):
Agencies produce many explanatory documents that can assist the public in understanding better their legal obligations. Known variously as “guidance, guidelines, manuals, staff instructions, opinion letters, press releases or other informal captions,” these materials are formally non-binding but in practice can sometimes become effectively binding, as they prove pivotal in how agencies choose to carry out their responsibilities and exercise their discretion. Members of the public need to be able to find relevant guidance documents, but they are not always accessible on agency websites—and even when the documents are accessible, they can be very difficult for members of the public to locate.
We urge you to make it a priority to ensure that all agency guidance documents are made available online in a timely and easily accessible manner. The recently enacted FOIA Improvement Act of 2016 reiterates the longstanding requirement that guidance meant to influence public conduct be published, and now requires online, rather than print, publication, thus easing this agency obligation. Even before the enactment of this law, best practices articulated by OMB included “the goal of making all [agencies’] significant guidance documents currently in effect publicly available on their Web sites.” The Small Business Regulatory Enforcement Fairness Act of 1996 similarly has required that compliance guides for small businesses be posted on an agency’s website in an “easily identified location.” ACUS has separately urged agencies to make rulemaking information generally, and guidance documents in particular, easier to find online
As the report mentions, guidance documents contain information that is critical to the public and regulated parties in helping to explain how to comply with an agency’s laws and procedures. Therefore, members of the public need to be able to find relevant guidance documents, but they are not always accessible on an agency’s website—and even when the documents are accessible, they can be very difficult for members of the public to locate. For some agencies’ websites, all of the agencies’ guidance documents are stored and organized in a manner that makes them easy to find. Often times these websites offer many ways to search for a particular guidance document, such as using a keyword, a regulatory or statutory citation, or some other data point that will help the public locate relevant information they are looking for. Other agencies, however, do not make it as easy to search for guidance documents because there is not flexibility in how the public can search for relevant information and also the agency’s website is not designed and organized in a manner that makes it easy to navigate in order to find relevant information.
For those who follow an agency’s day-to-day activities, this is not a problem because they receive notification when guidance is issued through means such as a press release or by monitoring the agency’s website daily. For the everyday Joe such as a small business owner or recipient of some type of government aid, however, a need may arise to research an agency’s guidance on a particular matter long after the guidance has been issued and that requires the person to go to the agency’s website and search for guidance from the website. When an agency’s website is not designed or organized well, the guidance may not be easily accessible. As time goes on, and agencies issue more and more guidance, this problem will only compound.
One factor that is important to consider in deciding how to best implement this recommendation is that some agencies do not currently have the funds necessary to redesign and improve their websites to make it easier to search for guidance documents. So whatever strategy is developed to implement this recommendation, it will have to involve a solution for certain agencies that have a shortage of funds or other necessary resources.
Levon Schlichter is a Council Member for the American Bar Association’s Section of Administrative Law and Regulatory Practice.
This is post is part of the Symposium on the ABA AdLaw Section’s 2016 Report to the President-Elect. An introduction to the symposium is here, and all of the posts are collected here. The views in this post, which expand upon the recommendations set forth in the Report, are the author’s own and do not necessarily reflect the views of the ABA AdLaw Section. The full Report is available here.