Administrative Record ANITA BILBAO, OR-931 Forest Management Advisor CELLINA BURKE,

1. Administrative Record ANITA BILBAO, OR-931 Forest Management Advisor CELLINA BURKE, OR-933 Litigation Specialist

2. Administrative Record - OBJECTIVES At the end of this module, participants should be able to: Describe the importance of a project/administrative record. State your role and responsibility related to building the project/administrative record. Identify the proper use of specialist reports and how that relates to you. Use references provided to answer questions. 2

3. What’s so important about the Administrative Record? In Administrative Procedure Act (APA*) cases, the Administrative Record is the only witness. In the United States, the APA establishes a process for the federal courts to review agency decisions. *APA or public law 79-404 became law it 1946 - it is a key piece of administrative law. 3

4. What’s so important about the Administrative Record? APA Standard of Review • A court can set aside agency action that it finds to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” • The court should not substitute its opinion for that of the agency. • A deferential standard of review—but BLM must earn the deference. 4

5. What’s so important about the Administrative Record? How does BLM win under the APA? • Articulate a rational connection between… • (1) the facts found and (2) the conclusions reached. • Persuasively argue the reasonableness of BLM’s action by pointing to administrative record evidence. Plaintiffs who bring APA lawsuits can get attorneys fees under the Equal Access to Justice Act (EAJA). Fees come out of agency’s budget, usually at the State Office level (may vary according to program). 5

6. AdministrativeRecord What isarecord? 44 U.S.C. Chapter 33 Sec. 3301d • “…including all books, papers, maps, photographs, machine readable materials, or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States Government under Federal law or in connection with the transaction of public business… as evidence of the organization, functions, policies, decisions, procedures, operations or other activities of the Government or because of the informational value of the data in them.” 6

7. AdministrativeRecord What is a record? • Examples: • Contracts • Operator Files • Grazing Permits • Official Directives • Management Plans • Specialist Reports • Master Title Plats • Official Correspondence • FOIA & Privacy Act Requests • Memorandums of Understanding • Email and email attachments documenting business process & decisions 7

8. Administrative Record What is a non-record? 36 C.F.R § 1220.14 • “…those Federally owned informational materials that do not meet the statutory definition of records (44 U.S.C. 3301) or that have been excluded from coverage by the definition. Excluded materials are extra copies of documents kept only for reference, stocks of publications and processed documents, and library or museum materials intended solely for reference or exhibit.” 8

9. Administrative Record What is a non-record? • Examples: • Personal Papers • Memory Joggers • Information Papers • Training Materials • Employees Notebook • Draft & working papers • Copies of Correspondence • Extra Copies of documents • Handwritten minutes taken at a meeting after they have been formalized & distributed 9

10. Administrative Record BLM records are: Factual Analysis: identify methodology, provide science, link facts and data to conclusions (do not speculate). Meeting notes: include date; attendee names and titles; subjects covered; proposals, agreements, and recommendations to the decision maker or other factual aspects documenting steps BLM took and considerations BLM made during project. Records in general: include date stamps & signatures on formal correspondence; complete transmission information on “to/from” lines on emails; all attachments to emails; thorough phone record logs etc. 10

11. Administrative Record BLM records are: Professional Content in records (particularly email): separate personal from professional components; refrain from editorializing or adding personal opinions (as opposed to professional conclusions based on facts/data). If you wouldn’t want your words to show up in a newspaper or court of law, then you shouldn’t include them in the records you are creating. 11

12. Administrative Record BLM records are: Relevant Content in records pertain to the project and decision to be made. Documents that demonstrate a flaw in analysis, support a difference methodology or science, include alternative proposals, demonstrate a difference of opinion are RELEVANT documents to be included in the record. The project record should also include BLM’s response or explanation regarding these types of differences or discrepancies. REMEMBER, there is no privilege for what we wish we had not written or said…BLM’s credibility may be compromised if multiple records aren’t factual, professional, and relevant. 12

13. Administrative Record – What is the Project Record? The PROJECT RECORD provides the supporting rationale behind a manager’s project DECISION: Contains the complete “story” of the agency decision making process, including options considered and rejected by the agency; Includes relevant and substantive information that was presented to, relied upon, or reasonably available to the decision maker at the time the BLM decision is made; 13

14. Administrative Record – What is the Project Record? The following terms are often used synonymously: Project File Project Record Case File Decision File In this training we use the term “PROJECT RECORD”. BLM’s project record can be further formatted into an “ADMINISTRATIVE RECORD” to be filed in litigation. Establishes that the agency complied with relevant statutory, regulatory, and agency requirements; and Demonstrates that the agency followed a reasoned decision-making process. 14

15. Administrative Record There is one official PROJECT RECORD, maintained in the District/Field Office. • a paper record BLM policy is to maintain records as hard copy paper (exceptions may include GIS data; metadata; maps etc.) • records added at the time they are generated (a “living” project record – created real time) • actual documents and data OR a copy of that data if it is in a field notebook or on a survey sheet etc. on file in another location. IF IT ISN’T IN THE RECORD, IT DIDN’T HAPPEN! 15

16. Administrative Record The PROJECT RECORD can later be translated into an ADMINISTRATIVE RECORD as the result of a legal challenge. Generally, the administrative record mirrors the project record (but it can be different). Work with your OSO program lead and Solicitors to identify scope of record. 16

17. Administrative Record – ROLES & RESPONSIBILITIES The Field Manager or Authorized Officer establishes: • Lead roles for the project, including PROJECT RECORD COORDINATOR or LEAD (person who knows the underlying project issues). • Expectations of all Interdisciplinary (ID) Team members related to record keeping. MECHANISMs: project initiation letter, records management strategy, employee performance elements and evaluation, modeling/rewarding behavior they seek from their employees. 17

18. Administrative Record –ROLES & RESPONSIBILITIES The BLM District Project Record Coordinator or Lead is responsible for: • Providing all team members with: • the expected organization • the expectation for what information is required to be included • the standard for what information individual documents should contain • Maintaining and compiling the Project Record (incoming records from the ID Team) • Planning for shared success • Identifying privileged documents • Privacy Act • Attorney Client and/or Attorney Work Product • Deliberative • Indexing the project record 18

19. Administrative Record –ROLES & RESPONSIBILITIES The Interdisciplinary Team (ID Team) is responsible for: • Being factual and professional. • Providing relevant data/facts to back up the conclusions you make in your analysis. • Producing the records you create for inclusion in the project record (discuss drafts). • Asking the Project Record Coordinator and/or Field Manager for needed clarification regarding the record. 19

20. Administrative Record –ROLES & RESPONSIBILITIES INTERDISCIPLINARY TEAM (ID Team) meeting notes should be identifiable and include: meeting date attendee names and titles list of the subjects covered proposals, agreements, recommendations of the IDT and/or meeting outcomes REMEMBER, you are documenting steps BLM took and considerations BLM made during the development of the project. Decisions are for the decision maker. 20

21. Administrative Record – FOCUS DISCUSSION NEPA vs. Other Information To “specialist report” or not…. • What is the intention behind a specialist report? • What are District approaches to using specialist reports? • Pros/Cons • How have the Courts treated these issues? REGARDLESS of your District’s approach… what’s important is that IF you use specialist reports, you USE THEM PROPERLY (same professionalism and level of integrity as writing as in EA; information tracks with that in EA and record as a whole). 21

22. Administrative Record - OBJECTIVES REVIEW: Why is the project and/or administrative record so important? What is your role and responsibility related to building the project record? What is the proper use of specialist reports and how that relates to you? 22

23. Administrative Record Where can I go for HELP? District Project Record Coordinator or Lead District Records Lead State Office Litigation Specialist (Administrative Record Toolkit & Liaison to Contractors) 23

24. Administrative Record Toolkit • What does it contain and where can I get it? • Question & Answer sheet • When do you initiate development of a project record? • How should you order documents in the Project Record? • What info should the index include? • Who does the attorney client privilege review? • When does the project record close? 24

25. Administrative Record Toolkit • Guidance from Office of the Solicitor • Tips for Compiling an Administrative Record • Standardized Guidance on Compiling a Project Record & an Administrative Record • Examples of: • Index and protocols for indexing (e.g. how to enter document descriptions) • Planning record outline and schema coding • Tracking calendar (project record to administrative record) • You can obtain copies of the AR Toolkit from Cellina Burke – OSO, Litigation Specialist 25