Administrative Procedure Act

Adequacy of Administrative Record. The court first reviewed the legal standards for determining the adequacy of an agency’s record, as well as a review of various agency guidance documents.
“In sum, the guidance documents encourage an expansive interpretation of the phrase ‘all documents and materials directly or indirectly considered by the agency.’ Documents should be included in the record if they were considered by an agency staff member who advised the final decision maker. Documents should also be included if they were available to a final decision-maker, yet were not considered. The only documents that should be excluded from the record are those that are irrelevant to the challenged decision, those which were not in the agency’s possession at the time the decision was made, personal notes, and privileged information. Given the complexity of NEPA cases and the expansive records that are generally produced, complete compliance with these guidance documents is virtually impossible. However, careful analysis of an agency’s protocol for compiling a record may be helpful in determining whether whole classes of documents were incorrectly excluded from the record.” The court then held that it was unable to assess the completeness of the administrative record that had been filed by FHWA, because (1) FHWA had not explained how the record was compiled, and (2) the record itself was not organized and indexed in a manner that facilitated the court’s review.

(1) Process for Preparing the Record. The court expressed concern that FHWA had not provided an explanation of the process used to compile the record, which made it difficult for the court to determine whether the record was complete.
” The FHWA has given the Court little detail regarding its methodology in compiling the AR. It states ‘[t]he AR includes the DEIS, the FEIS, and the ROD’ along with ‘approximately 130,000 pages of emails, notes, reports, records of meetings, and other materials.’ It does not explain how it selected which emails, notes, reports, records of meetings, and other materials would be included in the AR and which would be excluded.”
“[FHWA’s certification statement for the record] provides no guidance as to the process by which the AR was compiled. The FHWA’s response to plaintiffs’ motion provides no additional information. Until the FHWA describes the process by which the AR was compiled the Court is not in a position to assess whether the process was sufficient and whether the FHWA is entitled to a presumption of regularity.” (2) Organization of the Record. The court also expressed concern that the record itself was difficult to evaluate because of the lack of a usable index and because the materials in the record were not organized in any systematic manner.

“Further, the current state of the AR renders it virtually impenetrable. The Court’s ultimate task in this case is to determine whether the FHWA’s ROD should be set aside as an arbitrary and capricious decision. To do so, the Court must determine whether the FHWA complied with the procedures set forth in the NEPA and Section 4(f) by engaging in a ‘thorough, probing, in depth’ review of the AR. The FHWA has provided an index en mass to the AR comprising three volumes and 435 pages. There is no discernable organizational structure as to the dates, types of documents, or subject matter of the materials included in the AR. Further, there is nothing in the indices to indicate the DVD on which a given document is located. The Court is not in a position to engage in a ‘thorough, probing, in-depth review’ of the AR if it cannot effectively identify and locate relevant documents within the record.” Based on these concerns, the court ordered FHWA to provide the following documents, in order to enable the court to assess the completeness of the record:
“A description of the process by which the AR was compiled, including (a) the search terms for any electronic search, (b) any date restrictions for electronic or physical searches, and (c) any categorical content exclusions”
“An index of the AR organized as to the principle categories set forth in the Table of Contents of the ROD. These categories are identified with an asterisk (*) in Exhibit 1.”
“A separate index for each DVD comprising the AR. The FHWA must provide a hard copy of the indices as well as a searchable electronic index that identifies the DVD on which each document is found.”