Administrative Conference stalls plan to close dispute-resolution records

WASHINGTON, D.C.–Consideration of a proposal to make administrative dispute resolution records of the federal government exempt from the Freedom of Information Act has been postponed until early May by the Administrative Conference of the United States so that the conference can study objections by the Reporters Committee for Freedom of the Press and receive more comments on the proposal.

Through administrative dispute resolution procedures, parties may elect to resolve conflicts through a mediator without going to court. The Reporters Committee told the Administrative Conference in comments filed in mid-April that use of the procedures by the federal government should not increase secrecy, particularly when the government is a party to the proceeding.

The Reporters Committee said the federal government, in promoting more efficient alternatives to litigation, should not sacrifice the First Amendment and common law rights to openness in court proceedings. “Waving carrots of confidentiality before potential litigants” is an inappropriate way to encourage the alternatives, it said.

In 1992 Congress enacted the Administrative Dispute Resolution Act, requiring the administrator of the procedures (called a “neutral”) and the parties to keep any information concerning the procedures secret except in specific circumstances listed in the act.

However, at the urging of Sen. Patrick Leahy (D-Vt.), Congress stated that the ADR Act is not a law that triggers Exemption 3 of the FOI Act. That exemption allows agencies to keep information secret when another federal law mandates confidentiality. The legislative history of the ADR Act shows, however, that although Congress agreed to Leahy’s proposal, it intended to study the issue of confidentiality further at a later date.

The current recommendation before the Administrative Conference, an agency which exists to study and recommend improvements for federal agencies to the executive branch and to Congress, would make the ADR Act an Exemption 3 statute. The proposal was drafted by Prof. Mark Grunewald of Washington and Lee University.