Administrative Record

A full administrative record (everything before the agency at the time of its decision) consists of all documents considered, including those contrary to the decision. Keeping an administrative record will help:

• Future processes understand the decision and its rationale
• Aid the courts in determining whether a decision process was rational, if the decision goes to court.

Why Maintain an Administrative Record

NEPA does not have a citizen lawsuit provision. However, citizens can file a lawsuit over a NEPA decision by using the Administrative Procedures Act (APA). This law, passed in 1946, provides the basis to challenge decisions or actions taken by Federal agencies. APA allows a person who thinks they have been harmed by a Federal action to obtain judicial review of the action. The judge would determine if the decision was adequately in compliance with NEPA.

The court merely decides if the decision was rational or arbitrary and capricious. If the court can see how the agency came to its decision through a rational process, then the EIS must be upheld.

What is arbitrary or capricious? The judge looks at whether the agency acted within the legal scope of its authority. Was the decision based on facts? Was there an error in judgment? Were the correct factors (those required by Congress) considered? What the court does and looks at is very narrow. The court does not take evidence, does not decide if the decision is wise.

The judge looks at the administrative record of the agency and, therefore, takes no evidence. The judge does not have to resolve disputes between experts. The agency is entitled to rely on their experts. BUT the judge must be able to follow the paper trail and demonstrate the process it went through. If the record supports the Record of Decision (ROD) , the judge must affirm the decision of the agency. The review is ONLY of the FINAL agency action. Everything done up to that point is not subject to review -- that is, a citizen or group cannot go to court over a NEPA document before the ROD is issued.

An agency can run into problems if it does NOT consider an impact, even though it was brought to their attention. If there is missing data, the agency needs to show this. Furthermore, the agency MUST provide reasons for their conclusions.

Keeping an Administrative Record

To decide if record belongs in the administrative record, keep the decision-making process in mind. If the document is part of the process up the chain of command that culminated in the preparing the

EIS or making the decision, the document belongs (unless it is a personal record). Examples of records to keep:

 
• Draft and Final EISs (official drafts, but not the preliminary draft)
• Administrative Draft could be part of the record (use your judgement--did this change substantially?)
• Comment letters
• All scientific/technical reports, studies considered
• Computer modeling
• Contracts

Examples of personal reords:

• Correspondence between FWS and person developing model is probably not to be kept
• Personal notes/memos to file; if never shared, were personal record and NOT part of the official record. However, circulated memos belong in the record.

Note that E-mail is part of the record; all relevant E-mail correspondence should be copied and put in the file.

NEPA's public disclosure process is governed by FOIA. You can withhold information pursuant to FOIA regs' Deliberative Process Clause (re predecisional documents). However, invoking predecisional information when still in the decision making process is vastly different from when the decision has been made. The deliberative process privilege should be used sparingly. For example, you might withhold a draft with comments on it on grounds of deliberative process privilege.

The Administrative Record should include a log/list of documents being withheld under privilege; keep internal drafts that are marked up.

When Does the Record Begin?

The record began when the agency started the decision making process. The Administrative Record is done in strict chronological order. A study done in the 1970s, for example, would go first. The last document is the ROD.

If information is important to other agencies in making their related decisions, then keep it. Include documents used but NOT cited in the EIS. Standard texts and studies not particular to the region need not go in the record. If the study or document pertains to a specific area do put it in the record.

One copy of each record is all that is needed.

Assembling the Record

Assign one person as the official custodian for the administrative record (e.g.,. the Project Manager).

The record should be put together with the idea of facilitating review. Put the record in three ring volumes and separate documents with tabs. Have a number on each tab. These numbers should run

sequentially throughout all volumes. Use a stamp to sequentially number pages in the lower right hand corner. If you know undated notes/document all go together, reassemble to the extent possible.

If you don't recall, don't try to reassemble. Index each documen to shows the date, short description of the document, the volume number, and the stamped page number for each document. This master index goes with volume 1.

It is very helpful to summarize all the administrative work that has gone on, (e.g., meetings, concerns, etc. An action plan can serve as a framework for the administrative record).

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