Policy context

ACUS Recommendation 88- 10

In its Recommendation 88-10, 75 the Administrative Conference addressed federal agency use of computers in acquiring and releasing information. The preamble expressly noted, "the recommendations . . . do not address issues pertaining to automation of internal agency functions including important questions of records retention, evidentiary use of electronic records, and program administration." 76 Recommendation 88-10 instead emphasized that agencies should not deny access to electronic data under the Freedom of Information Act and that

"agencies should acquire information in electronic form when they use, or will use, the information in that form and when most information submitters already maintain information electronically, or have ready access to intermediaries who will prepare and submit it in electronic form. When agencies sponsor electronic acquisition programs, they should make clear their intention that all information required will eventually be available to them in electronic form, either by strictly administering exceptions to mandatory programs or by undertaking the conversion of paper submissions into electronic form themselves." 77

Paragraph H of Recommendation 88-10, entitled "Electronic Participation in Administrative Proceedings," noted that,

"agencies should experiment with electronic means of providing public participation in rulemaking, adjudication and other administrative proceedings, while maintaining a means of effective participation for persons who lack the means to access the electronic information system." 78

Thus, while Recommendation 88-10 did not address the internal automation or evidentiary aspects of automated agency docket systems, it did make it clear that public access in electronic form and electronic filing should be important features of any such systems.

Archiving policy

ACUS Recommendation 90-5 79 complemented Recommendation 88-10 and focused on internal agency electronic records management and effecting long term accessibility of public records through the National Archives. Its basic theme was that changes in the technology of record keeping should not alter the criteria or the practical accessibility of government records. 80 It did not, however, address judicial review or public access issues beyond emphasizing that it was intended to amend Recommendation 88-10.

ACUS Recommendation 90-5 recommends that:

"1. Federal agencies, including those responsible for archival and records policy, should ensure that:

(a) Changes in the technology of record-keeping, including the use of electronic systems in creating records and the transfer of records from paper to electronic formats, do not (i) alter the criteria for identifying material to be retained as a temporary or permanent record for eventual transfer to the National Archives, (ii) have the effect of altering the opportunity for, or scope of, judicial review of agency compliance with records law, or (iii) otherwise alter the substance of records law;

"(b) Changes in the format of agency information from paper to existing and future electronic media do not reduce the accessibility of information to the public;

"(c) Accessibility is not degraded by technological obsolescence of electronic formats;

"(d) Policies and procedures aimed at enhancing records management complement and, in any event, do not impair the utility of information systems for the performance of agency missions; and

"(e) Maximum use is made of generally available technology and, whenever feasible, that agencies conform to standards that are widely agreed to and in use in the private sector."

It also recommended that

"3. NARA should promote the development and implementation of standards for text, database, and other forms of electronic records, and should seek out opportunities for pilot and demonstration projects, covering candidates for standards for text and database information that can ensure the transferability of such information from agencies to NARA and ensure long-term accessibility to the public. NARA and the White House Office of Administration should develop concepts for a turnkey presidential records system that could go to a presidential library along with electronic presidential records, providing immediate public access to records to which access is permissible." 81

OMB circular A-130 requires that agency information systems be designed to satisfy eventual needs to archive appropriate information under schedules developed and approved by the National Archives and Records Administration.

Report on Public Information in the National Information Infrastructure

The author of this report submitted a "Report on Public Information in the National Information Infrastructure" in May, 1994 at the request of the Office of Management and Budget and the Regulatory Services Center of the General Services Administration. That report articulated the following "vision" of agency proceedings using information technology:

"Information technology can reduce the costs, reduce delays, and reduce the information management and scheduling burdens associated with agency rulemaking and litigation. There are no major legal or policy impediments to the development of systems with the following characteristics:

"* Notice-and-comment rulemaking will be restored to its intended flexibility, speed, and genuine broad-based public participation by giving notices of proposed rules electronically through bulletin boards and the Internet, receiving comments electronically and providing access to rulemaking dockets electronically through dialup and Internet-connected bulletin boards.

"* Dispute resolution procedures for individual cases, including formal adjudication, will be improved by automating notices, access to information, statements of positions, and prehearing, hearing, and remedy-management. For example, in enforcement actions or adjudications, citizens or their lawyers will submit their positions on electronic forms and will receive agency responses electronically. Transcripts will be exchanged in electronic form, permitting computerized searching for key words and phrases without the investment of additional effort or time. Dockets and schedules will be maintained in electronic form for easy access by citizens or their lawyers 24 hours a day.

"* Each agency will make available a "welcome to agency" World Wide Web/Mosaic page that will permit a citizen to go directly to subordinate agencies, to particular administrative proceedings of interest, and to other agency servers. Citizens lacking full featured Internet nodes can use the World Wide Web format through Lynx rather than through Mosaic.

"* Larger bandwidth wide-area networks will permit drawings, symbols, photographs, and video recordings to be accessible immediately, from anywhere, making virtual trials and hearings possible. 82

"* Citizens lacking access to desktop computer technology can obtain notices and submitted materials by touch-tone telephones or fax and can submit comments by leaving voice mail messages. These audio comments will be a part of the official docket.

"* There will be a government-wide electronic help desk, which will provide assistance to citizens by directing them to the most appropriate government office. The inquiry can come via voice, telephone or EMail message and will be routed by automated message processing and touch-tone telephone or keyboard and mouse selection from menu choices.

"* The entire 'record' of an agency proceeding will be maintained electronically, facilitating any subsequent review in the courts. 83

"* Electronic methods of interacting will enhance regulatory negotiation, by reducing costs and improving accessibility.

"* Interactive, 'conversational' modes of electronic participation and decisionmaking become feasible, while preserving a record of who said what; such new types of process may prove desirable supplements or replacements for conventional or more formal procedures." 84

Elsewhere, the report noted efforts by the Nuclear Regulatory Commission to use electronic submissions as part of adjudicatory procedures, 85 and the initiative of a working group convened by the Administrator of OMB's Office of Information and Regulatory Affairs ("OIRA") to ask agencies to identify specific proceedings suitable for further demonstration of information technology as a way of improving regulatory proceedings. 86

The report further noted that the legal issues presented by electronic rulemaking "are not particularly troublesome," 87 and that electronic adjudication also could serve the basic goals of agency adjudication law. 88 Indeed, the report asserted, the integrity of such a system would be greater than that achievable with human and paper-based systems. 89

The report concluded that agencies should begin as soon as possible to make electronic technology such as electronic bulletin boards, electronic postings of notices, and orders, and receipt of electronic submissions a regular part of their regulatory proceedings, acknowledging, however, "because electronic rulemaking and adjudication are relatively new ideas, it is desirable to have further experimentation before fixing particular procedures in definitive administrative or statutory guidance." 90

GILS

On December 7, 1994, the Office of Management and Budget unveiled the Government Information Locator Service ("GILS") in its bulletin 95-01. OMB subsequently called GILS a "virtual card catalog." 91 The first phase of GILS identifies public information resources throughout the Federal Government, describes the information available in those resources, and provides assistance on how to obtain the information. It consists of a decentralized collection of agency-based information locators and associated information services. A "GILS core" is specifically designed to be a definitive locator of agency information resources. The GILS core is intended to be available on public networks without charge to direct users. 92 Federal Information Processing Standard ("FIPS") Publication 192 was approved by the Secretary of Commerce on December 7, 1994. 93 FIPSPUB 192 is based primarily on the American National Standard for Information Retrieval Application Service Definition and Protocol Specification for Open Systems Interconnection (ANSI/NISOZ39.50-192), developed by the National Information Standards Organization. The GILS profile specifies the use of Z39-50 in information service applications and provides specifications for the overall GILS application, including the GILS core and aspects of a GILS server operating in the Internet environment. The profile enables GILS clients to interconnect and interoperate with any GILS server. GILS servers support search and retrieval by accepting a search query and returning a results set or error messages. GILS servers also may support browsing by accepting standard search queries and returning a list of records in summary format. The profile embodied in FIPSPUB 192 supports common Internet applications such as Telnet, FTP, and electronic mail, but not SMTP and MIME. 94

The GILS initiative is significant because it represents a commitment to the Internet as a way of making federal information widely available to the public without relying on proprietary protocol and networks. It is also significant because the underlying Z39.50 specification permits retrieval of the complete content of an information object in the same session at which a bibliographic search is done, although implementing full text retrieval is an option in the first phase of GILS implementation.

GILS does not directly address management of agency rulemaking and adjudicatory proceedings. Nevertheless, the GILS approach can be usefully adapted to docket management systems. For example, docket records could be expressed in Z39.50-compliant format, permitting a lawyer or citizen to search widely across agency boundaries or across regulatory proceeding boundaries to find documents of interest.

OMB Circular A-130

OMB circular A-130 95 emphasizes the importance of public access to records regardless of the form or medium in which they are kept, 96 and encourages agencies to use electronic media and formats. 97 The circular does not directly address electronic rulemaking or adjudication.

Footnotes

75 1 C.F.R. 305.88-10(1995).

76 1 C.F.R. 305.88-10(Preamble).

77 Id. Recommendation B(1).

78 Id. Paragraph H.

79 1 C.F.R. 305.90-5(1995).

80 Id. Para. 1.

81 55 Fed.Reg. 53270 (Dec. 28, 1990), 1 C. F. R. 305.90-5 (1995).

82 More bandwidth costs more, of course. There is no question, however about the feasibility of sending large volumes of images over a wide area network. This routinely occurs in the Internet's World Wide Web.

83 This is not always possible, for example, when real evidence, such as a weapon or a defective part is admitted into evidence. Then the most the electronic system can do is to refer to whether the exhibit can be found, and perhaps contain a digitized image of the exhibit.

84 OMB/GSA Report at 1.4.

85 Id, at 2.5.c

86 Id. at 2.5.

87 Report 6.2.1.

88 Report 6.2.2.(noting need for further demonstration and experimentation and suggesting that good record system design can insure adequate audit trails and that signature and writing requirements can be met in essentially the same way they are met with electronic data interchange ("EDI"), by good system design to enhance system integrity and to permit documents to be authenticated.)

89 Report 6.2.2.

90 Report 7.8.1.

91 60 Fed.Reg. 20124 (Apr. 24, 1995)(notice of inquiry and electronic open meeting).

92 58 Fed.Reg.. 61109 (Nov. 19, 1993)(notice of draft design concept for GILS).

93 59 Fed.Reg.. 63075 (Dec. 7, 1994). Federal information processing standards are issued by the National Institute of Standards and Technology ("NIST") after approval by the Secretary of Commerce pursuant to 111(d) of the Federal Property and Administrative Services Act of 1949 as amended by the Computer Securities Act of 1987, pub. L. 100-235, 101 Stat. 1724, codified at 15 U.S.C. 271 note, 272, 278g-3, 278g-4, 278h, 40 U.S.C. 759, 759 note. See also Federal Information Resources Management Regulations ("FIRMR") Subpart 201-20.303, standards and subpart 201-39-1002, Federal Standards.

94 SMTP and MIME are electronic mail enhancements.

95 58 Fed.Reg.. 36068 (July 2, 1993).

96 Id Par. 8a(4)(b)

97 Id, Par. 8a(8).

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