Administrative Record

1. Administrative Record

2. Administrative Record Is the written record supporting the agency’s decisions.

3. Must Show • Agency decisionmakers understood the legal standard applying to the decision. • The standard was applied properly; that they considered the proper information, evaluated all of the factors requiring evaluation, and considered relevant factors in terms of the legal requirements governing the action. • The action taken is reasonable.

4. Administrative Record • This entire file is submitted to the court, and the legal positions taken by the government are then based on this written record. • A good administrative record should reflect what the agency did and why it acted. • The record must reflect how the agency handled the information it received and developed. It must reflect the way the agency handled negative information.

5. Documents Included • All documents and material directly or indirectly considered by the agency decision maker in making the challenged decision. • Include documents and materials whether they support or do not support the final agency decision. • Include documents and materials which were before or available to the decision-making office at the time the decision was made.

6. Documents Included • Include documents and materials that were considered by or relied upon by the agency. • 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.

7. Documents Included • Include privileged and non-privileged documents and materials. • (Once the record is complied privileged or protected documents and materials may be redacted or removed from the record.) • Remember to integrate State documents into the Administrative Record.

8. How to organize the Administrative Record • Organize documents and materials from the beginning of the project. This way as the project is proceeding you are developing the administrative record. • Emails concerning the project – set up a cc box that all email communication concerning the project is automatically sent. • Organize the documents and materials in a logical and accessible way. • Put in chronological order and/or topic. • If do not fit in chronological order may be separated by category, e.g. internal policies, etc.

9. How to organize the Administrative Record • Prepare an index. • After attorney review of record, Bate Stamp. • Agency (Division Office) must certify the administrative record.

10. Consequences of Incomplete Administrative Records • Government may be allowed to complete but may raise questions about the completeness of the entire record. • Court may allow extra-record discovery, including depositions of agency personnel, and my allow court testimony of agency personnel. • Court may allow discovery if the court determines the incompleteness is based upon bad faith, or improprieties which may have influenced the decision-maker or the agency relied on substantial materials not included in the record.

11. Example – Merritt Parkway Conservancy et. al. v. Mineta • The court found that the agency failed to adequately document in the administrative record and its 4(f) statement, efforts to comply with the guidelines and show minimization measures. • The court emphasized that it was not finding that the design as proposed failed to minimize harm but rather that the administrative record failed to document the minimization measures.