ACUS provides recommendations to promote online disclosure of agency settlements of enforcement actions.
Settlement plays an important role in resolving agency enforcement proceedings, yet settlement agreements are often not easily accessible to the public or regulated entities. There is no online centralized database of settlements in agency proceedings. Furthermore, agency practices vary considerably in making settlements available on their websites.
To address these reporting inconsistencies and help guide agencies in developing policies, the Administrative Conference of the United States (ACUS) last December adopted recommendations that include factors for agencies to consider for posting settlements online and how settlements can be more easily accessible on agency websites.
Federal agencies resolve a vast number of enforcement proceedings through settlements. Settlements allow agencies to resolve disputes more efficiently, conserving agency resources and obtaining more expeditious relief for the public.
Although settlement is a common agency practice, settlements widely differ across agencies with respect to the purposes they serve, the types of settlements agencies enter into, and the counterparties involved. Agencies’ unique enforcement missions and authority contribute to differences in agency settlement practices and their approaches to posting settlements online.
Generally, agencies are not required to proactively post settlement agreements online under the Freedom of Information Act (FOIA) and other disclosure laws. Instead, agency settlements are typically required to be disclosed under FOIA pursuant to a request.
Many agencies, however, choose to proactively provide access to settlements on their websites. Because agencies exercise discretion about whether to proactively post settlements on their websites, agency practices vary considerably in the amount of settlement information they post online.
To better understand agency practices, I visited a representative sample of agency websites to assess what settlement information is available online and how easy it is to find settlements on an agency website and drafted a report of my findings. I found that some agencies provide comprehensive, well-organized information about settlements, while others provide little to no information at all online.
In addition, I conducted interviews with various stakeholders—including individuals from agencies, regulated entities, and the public—to understand different perspectives about making settlements available online. In these interviews, stakeholders identified many important benefits of making settlements available online and others raised concerns about online disclosure.
To guide agencies as they consider policies for posting settlements online, ACUS recently adopted recommendations encouraging agencies to develop policies that recognize the benefits of proactively disclosing settlement agreements on agency websites and balance those benefits with concerns about online disclosure.
ACUS recommends that, when developing their policies, agencies consider the benefits to regulated entities of posting settlements online as well as the value such posting provides to the public interest. Settlements transmit important information about how agencies approach enforcement and their interpretation of the laws and regulations they enforce. Regulated entities rely on agency settlements to guide them in the formulation of their practices and policies. Attorneys who represent clients in agency proceedings consider past settlements in advising their clients and advocating for them in settlement negotiations.
Furthermore, online access to settlements empowers the public to evaluate how agencies enforce the law and use public funds in such enforcement. In addition, transparency about settlements by providing information online guards against potential bias in enforcement.
Other factors in ACUS’s recommendations include considering how to provide information about settlements online when there are privacy interests involved or when disclosure may undermine settlement efforts or require significant agency resources. In those instances, ACUS recommends that agencies consider whether online disclosure, even after redaction or anonymization, would adversely affect sensitive or legally protected interests.
Agencies should also consider whether providing settlements online would impose significant administrative costs on the agency or, conversely, whether doing so would preserve agency resources by reducing the volume of FOIA requests if settlements could be directly accessed online.
The ACUS recommendations guide agencies on how to provide information about settlements online even if the agency chooses not to post every settlement. Agencies should consider, in those circumstances, providing settlement information online through alternative methods. These alternative methods include posting settlement agreement templates, representative samples of settlement agreements, selections of settlements with significant legal or factual issues, settlement summaries, or descriptions of settlement trends. Furthermore, agencies should consider posting a searchable online database that provides information about settlement agreements such as case types, dates, case numbers, parties, and key terms.
Agencies should also consider whether the design and functionality of their websites facilitate easy access to settlement information online. ACUS recommends that agency websites have a webpage dedicated to agency enforcement that is easily accessible from the agency’s homepage through a search engine, menu bar, and site index. Furthermore, agencies should consider creating a webpage for individual enforcement proceedings, such as a docket page, that includes links to any associated enforcement materials.
The ACUS recommendations build upon a long line of guidance calling on agencies to both make more information available to the public and use their websites to facilitate and promote meaningful, ready public access. The ACUS recommendations on the public availability of settlements offer agencies helpful guidance in designing their policies to provide greater public transparency and guidance in a more comprehensive and easily accessible manner online.
This essay is part of a three-part series on Improving and Disclosing Agency Decisions.