Margaret B. Kwoka
94 Geo. Wash. L. Rev. 1089
The federal government holds a vast repository of documents, including records about individuals’ finances, health, interactions with the criminal justice system, immigration histories, and military service. For current or former government employees, agencies may hold personnel records, ethics information, and financial disclosures. For private businesses, government agencies may have licensing or inspection records, required filings for publicly traded companies, and permitting information. The federal government collects and maintains this information as part of its routine administration of government programs.
For many agency determinations, the records that an agency already possesses are critical to the proceedings. Yet federal government practices vary widely in how agency decision-makers obtain the relevant government records. At one end, the agency bends over backward to gather all the relevant documents itself. At the other extreme, agencies rely on individuals to gather records on their own, including by making Freedom of Information Act requests.
This Article explores the range of agency practices in obtaining government records for use in their proceedings. Drawing on the extant legal requirements for the provision of records to the public in various proceedings and on interviews that the Author conducted with government officials about their agencies’ practices, this Article evaluates these practices against the fundamental objectives of fairness, efficiency, and accuracy in agency proceedings. It proposes a framework for considering those values in different contexts, including determinations related to enforcement, benefits, licensing, and contracts or grants, and suggests this framework can help agencies approach the question of how best to obtain relevant information.
