what is the administrative record? · what is the administrative record? the "administrative...

HHCTCP ADMINISTRATIVE RECORD PROTOCOL

What is the Administrative Record? The "administrative record" is the full set of documents (papers, data, references, correspondence, maps, and all other materials) in all formats (paper, CD, and other media types) that supports an agency's decision-making process. The primary purpose of the administrative record is to serve as evidence that the agency:

- understood the law applying to the decision;

- considered all the relevant factors; and

- made a reasoned decision.

Why is an Administrative Record Important. Pursuant to the Administrative Procedures Act (APA), a court reviews a challenged agency action to determine if it was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). When an agency action is subject to litigation, positions taken by both sides are based on what is in, or is missing from, the record. In general, the record cannot be supplemented by either side once it is compiled and filed with a court. If an agency fails to compile the whole administrative record, it may significantly impact the ability to defend a challenged decision, as well as frustrate the court's ability to review the decision.

The goal for a good administrative record, therefore, is to reflect both the process the agency used to arrive at its decision, as well as describe the factual basis of the final decision. It should include documentation of all of the factors, including those that support and are contrary to the final decision at issue, and how the agency handled them. This includes documents, communications, technical data, studies, and much more. Omission of information, such as the failure to explain how a decision was reached, is the greatest vulnerability in the agency decision-making process. This is because when the basis for an agency decision is not explicit in the record, the court is free to draw its own conclusions, which may be detrimental to the agency.

Protocols The administrative record, including the Administrative Record Log, will be stored in two places. TBD, will be the Administrative Record Administrator, responsible for the electronic files on XXX and XXX as well as the physical storage of the administrative record in locked file cabinets located XXXX. The Administrative Record Outline and Index as well as Administrator contact information are located at the end of the memorandum.

• For team members in the Honolulu project office hard copies of documents can be hand-carried to the Administrator for processing through Document Control, posting on PS2 and

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incorporating into the Administrative Record as appropriatein consultation with the City's Department of the Corporation Counsel ("Counsel"). For documents held only in electronic form, the documents can be e-mailed to the Administrator.

• For team members working outside the project office, documents can be e-mailed to the Administrator, who will then save the document in the electronic file and hard copy file.

• Hard copies of documents not suitable for electronic transmittal can be submitted in hard copy form to the Administrator for scanning into the electronic file. The original hard copy submitted will then be filed in the physical storage file.

• Each team member will be responsible for making documents, communications, and other materials available to the Administrator for inclusion into the administrative record.

Accessing the files in the Administrative Record:

Team members may check out files in the administrative record through the Administrator but documents may not leave the Honolulu project offices. A record of all documents checked out will be maintained.

• Additional Information for document submittals

Documents in progress should not be submitted in hard copy form for the administrative record. All documents in progress should state on the document that it is a draft or in progress.

Excessively large documents, and other items that cannot be submitted in paper form, must be summarized as specifically as possible, including a description of what form the file is submitted in and/or where it is located. This summary will become the entry for the administrative record for this document and submitted to the record following the above protocols. Any large format maps or other documents referenced therein, must be labeled on the hard copy, reflecting which document it relates to in the record. CDs, discs, and other media can be submitted and entered.

When submitting letters, be sure to keep each envelope with its corresponding letter.

Privileged Documents and Materials Administrative records commonly contain privileged or protected documents and materials. Each agency should consult with the agency counsel Counsel as to the type and extent of the privileges being asserted. Any documents considered to be privileged or protected must be reflected in the

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administrative record.If documents and materials are determined to be privileged or projected, the index of the record must identify the documents and materials, reflect that they are being withheld, and state on what basis they are being withheld.

In consultation with Counsel, Aa written statement document identifying the protected or privileged document and materials must be submitted to the Administrator. This document should include the date, subject, author and recipient, type of document being withheld and stating the basis for which it is being withheld; but no additional information should be included, so the privilege is not waived. PS2 has a security function that can control who has access to documents in PS2. The statement document outlined above will reflect the privileged or protected document and materials in the physical storage. The Administrative Record Log will note any protected or privileged documents in the Administrative Record.

Determining if a Document Should Not be Included in the Administrative Record While it is important to have a complete administrative record, it is not necessary to include every piece of paper generated by the project. Unfortunately, there are no hard and fast rules as to what should be eliminated from the administrative record. However, one general principle is that any materials generated or received by the lead agencies and project applicant, cooperating agencies, and contractors that identify how a decision was made during the planning process need to be in the administrative record. This means that even for the general categories of excluded materials below, there is always a corollary consideration that if the document reflects a significant step or input impacting a decision, it should be included. This applies to e-mails, CDs, maps, discs, data files, graphs, charts, handwritten notes, administrative drafts, and other items of the same or similar kind. If you have any doubts, consult with Counsel.

With that in mind, the following may e excluded from the administrative record.

• Materials not in existence at the time of the agency decision.

• Working Drafts/Internal Plan Comments that are editorial in nature and do not contain any significant comments from partners, managers, team members, or contractors (pre-decisional and deliberative). If the comment is significant in any way (i.e., anything that would clarify how the decision maker made a decision, such as select or eliminate a preferred alternative) or if the comment addresses a controversial issue, it should be filed in the administrative record. This includes comments that do not support the final decision. It is important that the record documents how a decision was made. Assume that everything is discoverable by potential plaintiffs. It would be far worse to have a plaintiff discover a missing piece of the record than it would be to show that the final decision considered all comments.

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• Personal notes (except if notes reflect significant input into the decision-making process). Journals maintained by an individual are not included, unless included in an agency file. Agency file is determined by agency control, possession and maintenance.

• Non-official e-mails that do not involve how decisions were mad and so forth (each person is responsible for submitting their own significant correspondence into the administrative record)

• Internal meeting notes when no decisions are being made that will affect any other decisions the manager will make.

• Excessively large documents (may be refere d in the record but must be available immediately to the public or a court if nec

The decision to include, or not include, material into the ad e re ord will be m de by XXXXXX and, ultimately legal counselCounsel in cooperatioi1FTA. Again, team members need only make the materials available to the administrator. If you are not certain if a document, correspondence, or other items of the same or similar kind should beigt of the administrative record take a conservative approach and jorward it to the administrator.

Schedule of Providing Materials for the Administrative Record All administrative record materials must be submitted to the administrative record as soon as they are identified, produced and/or finalized, following the protocols outlined above. As the [Gatekeeper], the [XXXX] will review the Administrative Record for completeness and consistency and new submissions to the administrative record will be reviewed weekly. Any inconsistencies or missing documents, from the physical storage or the electronic record will be identified.

Documents Subject to Freedom of Information Action (FOIA) and Hawaii Uniform Practices Act (UIPA) Requests Most documents produced during a planning process are subject to the Freedom of Information Act and the Hawaii Uniform Practices Act. Therefore, the public can request most team members must be aware that all e-mails, comment letters, and many other materials can be requested by the public from the Team. When writing e-mails, be careful not to include personal information, comments about litigation or other inappropriate comments. Likewise, when responding to comment letters, do not write your comments directly on the letter.

FOIA and UIPA Rrequests by the public should be must be submitted in writing to the one following, respectively:

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Administrative Record Administrator & Gatekeeper XXXXXXXX

Administrative Record Oversight XXXXXXXXXX XXXXXXXXX


Names and addresses for the lead agencies:

Mr. Ted Matley

FTA Region IX

201 Mission Street, Suite 1650

San Francisco, CA 94105

Mr. Wayne Y. Yoshioka

Department of Transportation Services

City and County of Honolulu

650 South King Street, 3 1d Floor

Honolulu, HI 96813

Key Staff in Developing and Maintaining the Administrative Record

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ADMINISTRATIVE RECORD OUTLINE

Project File Index (to be created at end of Process)

AA Alternatives Analysis • Alternatives Analysis Report 11/06 [Sample Documentation Format used for all files]

• Document • Elements • Comment Response • E-mail / General Correspondence • QA • Supporting Documentation • Distribution

DCR DEIS Comments and Responses

EIS Environmental Impact Statement • Draft EIS 11/08 • Administrative EIS 6/09 • Legal Sufficiency Review EIS 10/09 • EIS • ROD • Decision Documents

• ACOE .4 0 NPS FAA

o FTA o Others

• Technical Reports

FP Financial Plan

MA/MN Meetings Agendas/Minutes

PA Programmatic Agreement

PC Project Communication

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• Project Status (Status Reports/Schedules) • Federal Agencies • State Agencies • Local Government • Nongovernmental Organizations • General Public

PI Public Involvement • Public Involvement Plan • Federal Register Notices • Media Releases • Public Newsletters • Fact Sheets • Public Workshop Meetings • Other

PR Permitting

PV Privileged Communication

SC Scoping • Scoping Information Package 12/05 • Scoping Report 2/06 • Scoping Information Package 3/07 • Scoping Report 5/07

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