Paper: Improving the Affirmative Disclosure of Agency Legal Materials

152 Pages Posted: 9 Mar 2023 Last revised: 17 Sep 2023

Bernard W. Bell

Rutgers Law School – Newark

Cary Coglianese

University of Pennsylvania Carey Law School

Michael Herz

Yeshiva University – Benjamin N. Cardozo School of Law

Margaret B. Kwoka

The Ohio State University Moritz College of Law

Orly Lobel

University of San Diego School of Law

Date Written: March 8, 2023


Agencies produce a plethora of materials and records. Many of these materials impose legal obligations on or hold important legal implications for commercial or individual actors in the private sector. Others bind the agencies themselves in ways that affect the rights or interests of private parties. Other materials can provide the public with information about how agencies interpret and apply the statutes and rules they administer, or how agencies seek to deploy their discretion or take other actions that can affect private individuals or organizations. This Article is focused on improving the public availability of all of these agency legal materials.

In Part I we begin by laying out our broad objectives, which is to ensure the public has ready access to legal materials that are important for the public to know, while recognizing that a limited set of legal materials will be subject to exemption from disclosure for countervailing reasons requiring secrecy. In Part II we delve into an analysis of the current state of disclosure requirements and how they apply to each type of agency legal material that we address in this Article. We identify opportunities to clarify, improve, or strengthen the law, and argue that all non-exempt records that constitute agency legal materials should be affirmatively disclosed, rather than subject only to reactive disclosure in response to a request. Part III goes beyond the question of which agency materials constitute legal materials and should be made affirmatively available. It tackles the question of how agencies should make those materials available and what mechanisms will be available to enforce these disclosure requirements. Part IV concludes and summarizes our recommendations for legislative actions to ensure effective and comprehensive public access to agency legal materials.


Keywords: Administrative law, government regulation, rulemaking, public records, disclosure, transparency, availability, accountability, affirmative disclosure, Freedom of Information Act, FOIA

Bell, Bernard W. and Coglianese, Cary and Herz, Michael Eric and Kwoka, Margaret B. and Lobel, Orly, Improving the Affirmative Disclosure of Agency Legal Materials (March 8, 2023). Ohio State Legal Studies Research Paper No. 760, Michigan Journal of Environmental & Administrative Law, Forthcoming, U of Penn Law School, Public Law Research Paper No. 23-12, Cardozo Legal Studies Research Paper No. 702, Rutgers Law School Research Paper, San Diego Legal Studies Paper No. 23-029, Available at SSRN: or