ACUS recommends best practices for improving private citizens’ access to government records.
Agencies conduct a vast number of administrative proceedings each year, including proceedings to decide applications for benefits, services, licenses, and permits, as well as enforcement actions against persons suspected of violating the law. To participate meaningfully in these proceedings, both private parties and agency officials often need access to government records, or a right to “discovery.” This right can be critical to prove eligibility for benefits or services, access agency documents relevant to one’s case, or understand how an agency has resolved similar cases.
Obtaining these records in a timely and efficient manner, however, can sometimes be challenging. Because the Constitution and the Administrative Procedure Act are largely silent regarding discovery rights in administrative proceedings, access to government records largely depends on a patchwork of statutes, regulations, and individual agency practices.
When other methods fail, parties may turn to the Freedom of Information Act (FOIA) to provide a procedure for obtaining necessary records, but this recourse can create unnecessary inefficiency. For example, an agency may already possess a document but refuse to provide it to a private party, forcing that party to resort to a FOIA request before, in turn, providing the agency with that same document in a proceeding. This dynamic, which Margaret Kwoka labeled “request and return,” can occur both within a single agency or between different agencies.
Earlier this year, the Administrative Conference of the United States (ACUS) adopted Recommendation 2026-1, “Obtaining Government Records for Use in Agency Proceedings,” to identify best practices for helping private parties and agency officials access federal records in agency proceedings. The report that informed this recommendation was prepared by Margaret Kwoka. Kwoka drew on legal sources, public agency documents, secondary literature, formal interviews, and informal conversations with agency officials.
The report identifies several methods by which parties obtain government records. Agencies may provide documents through administrative discovery governed by formal rules. They may provide public access through online portals or proactive disclosure. Agencies may respond to individual requests to obtain records, whether FOIA requests or procedures specific to a particular agency. Finally, agencies engage in informal document sharing, both with other agencies and with private parties.
Agencies can also take responsibility for obtaining records themselves in a proceeding, which can be particularly beneficial for applicants with limited resources who are seeking benefits or services. Agencies may assist an applicant, with the applicant’s consent, to gather information from other agencies, or agencies can enter agreements to share information across agencies. For example, the Department of Education allows applicants to pre-fill answers to some questions on the Free Application for Federal Student Aid by automatically transferring relevant information from an applicant’s federal tax return using a consent-based information-sharing process developed by the Education Department and Internal Revenue Service.
Based on the report, ACUS recommends that agencies make relevant records available to agency officials, other agencies, and private parties unless the law prohibits disclosure or permits withholding. Similarly, it recommends policies on sharing records with relevant officials in different agencies in proceedings regarding benefits and services. ACUS also recommends that agencies establish written procedures for parties to request records commonly needed in proceedings and publish these procedures when practicable.
Moreover, ACUS also urges agencies not to require parties to request and return records that the agency already maintains. When feasible and appropriate, agencies should supplement party submissions with relevant information from their records or, with the party’s consent, records maintained by another federal agency.
ACUS also recommends that, when requests for particular records are frequent and require little redaction, agencies create online self-help portals to allow parties to access those records. The conference further urges agencies to design records to support faster disclosure, such as by enabling automatic redaction of private information.
If implemented effectively, ACUS’s recommended practices could reduce administrative burdens, improve access to evidence, and promote fairer, more accurate, and more efficient agency decision making.
