Administrative Record / FOIA and FACA in NEPA Analysis

Description

Participants in this workshop will learn what are records, what is included in the Administrative Record and how to prepare and index records for litigation. They will learn how to manage e-mails, correspondence, draft materials, working files, privileged and protected information as part of the record. We also explore the implications of the Federal Advisory Committee Act and the Freedom of Information Act requirements and how these statutes relate to the project and certified administrative records as well as how those statutes can create changes and issues with implementing the National Environmental Policy Act (NEPA). Participates will learn how to respond to requests under the FOIA for documents being developed during the NEPA Analysis. Participants will also learn when discussions and communications with non-government interests may constitute violations of the FACA and how to best cooperate and engage with interest groups to ensure these groups are informed during the NEPA analysis without risk of FACA violations.

Objectives

Upon completion of this workshop, participants will be able to do the following:

  • Know what qualifies as a record under the definition of the Federal code as it applies to the Administrative Procedure Act.

  • Evaluate what properly goes in the Certified Administrative Record for purposes of NEPA.

  • Know how to properly reference records for inclusion in the Administrative Record.

  • Create an index for a defensible Administrative Records.

  • Know what qualifies as a record that may be subject to FOIA and what can be deferred under the deliberative process.

  • Know how to organize records for easy retrieval of records subject to FOIA.

  • Know how to create a FACA committee, how or coordinate and oversee FACA committee meetings and functions.

  • Know when in the NEPA analysis process meeting with outside interest groups may constitute risks with violating FACA requirements.

Content

The basic format of the short workshop includes the following components:

  • Defining what are “records” and the various types of records for APA and NEPA compliance.

  • What goes in the Certified Administrative Record.

  • What materials should be included in the record, and what should not go in the record.

  • How to construct and manage the record for quick and complete retrieval.

  • Explore the important court cases that define the sideboards for compiling a defensible Administrative Record.

  • Examine record guidance from the Department of Justice, Department of Interior and applicable agencies of workshop participants.

  • Discuss the implication of the Federal Advisory Committee Act and the Freedom of Information Act to records management and public disclosure

  • Defining what are “records” and the various types of records subject to FOIA requests.

  • What is subject to release to the public under FOIA requests and what not to released.

  • Different ways to comply with FOIA to make it efficient for the agency.

  • How to construct and manage the record for quick and complete FOIA retrieval.

  • Explore the important court cases that define the sideboards for FOIA and FACA compliance.

  • Tie the various NEPA planning phases with FACA risks.

Audience

Participants for this training generally include NEPA coordinators, Federal program and project managers, technical specialists (subject matter experts), interdisciplinary team (IDT) leaders, decision-makers, and reviewers of NEPA documents.

Process

This workshop is interactive intended to explore specific problems and questions faced by practitioners in managing records. Unusual case studies are presented that require thinking on the part of workshop participants.  However, an in-depth understanding of NEPA, APA, FACA or FOIA are not required.  For optimal learning, class size is limited to 30 participants. This 2-day workshop consists of a carefully designed combination of the following components:

  • 60% Lecture

  • 10% Group Discussion

  • 30% Exercises

Materials

Participants receive the following:

  • Workshop manual of materials presented

  • Case study exercises

  • Workshop resources workbook