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Federal Register / Vol. 86, No. 13 / Friday, January 22, 2021 / Notices
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agency litigation web pages.5 The survey suggests that most federal agencies do not maintain active agency litigation web pages.
Among those that do, the quality of the agency litigation web pages varies appreciably. Some contain vast troves of agency litigation materials; others contain much more limited collections. Some are updated regularly; others are updated only sporadically. Some are easy to locate and search; others are not. In short, there appears to be no standard practice for publishing and maintaining agency litigation web pages, save that all the surveyed agency litigation web pages contained only the publicly filed versions of agency litigation materials, with all confidential materialsuch as trade secrets and personally identifiable informationredacted.
An inspection of agencies litigation web pages suggests four general features that make an agency litigation web page useful.
First, an agencys litigation web page must be easy to find. Second, it must contain a representative and up-to-date collection of agency litigation materials. Third, those materials must be easy to search and sort.
And fourth, the agencys litigation web page must give visitors the information they need to understand the materials on the web page, including information about materials the agency omitted from the web page and the criteria the agency employed to determine which materials to include on the web page.
Agency litigation web pages can promote transparency and accountability. The Administrative Conference recognizes, however, that creating and maintaining a useful agency litigation web page takes time, money, and effort. An agencys decision to launch an agency litigation web page will necessarily be informed by considerations such as the agencys mission, litigation portfolio, existing technological capacity, budget, and the anticipated benefitsto the agency and the publicof creating an agency litigation web page.6 Further, an agencys decisions about what content to include on an agency litigation web page should be tailored to the agencys particular circumstances. An agency that litigates thousands of cases each year, for example, could choose to feature only a representative sample of agency litigation materials on its agency litigation web page.
Similarly, an agency that litigates many repetitive, fact-based cases could reasonably choose to post documents from just a few representative cases instead of posting 5 See id. at 1219 identifying variations in agency practices. The survey conducted for this Recommendation covered all kinds of agenciesbig and small, independent and not, regulatory and benefit-oriented, and so forthwith the aim of covering a broad and at least somewhat representative cross-section of federal agencies. In particular, the survey focused on agencies that are frequently in federal court or that are parties to a significant number of high-profile cases.
6 Most federal agencies do not have independent litigation authority but are represented in court by the Department of Justice DOJ. In most cases, these agencies designate a DOJ liaison, who is then added as a recipient for all court filing notices, resulting in automatic access to all filings via PACER. This automatic access should enable implementation of this Recommendation by client agencies.

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documents from all of its cases.7 And an agency that litigates many different types of cases, some of obviously greater interest to the public than others, might appropriately restrict the contents of its agency litigation web page to agency litigation materials from the types of cases that are of greater public interest, particularly when the agency determines that the resources required to post more agency litigation materials can be better applied elsewhere.
Since the decision to create and maintain an agency litigation web page involves balancing factors that will differ from agency to agency, this Recommendation should not be read to suggest that agency litigation web pages be created and maintained by all agencies, especially those that litigate thousands of cases each year. Nor should this Recommendation be read as dictating the precise contents or structure of agency litigation web pages. While encouraging the creation and maintenance of agency litigation web pages, the Administrative Conference recognizes that an agencys particular circumstances might ultimately militate against creating an agency litigation web page or might support only the creation of a comparatively limited version.
At bottom, this Recommendation simply offers best practices and factors for agencies to consider in making their agency litigation materials available on their websites, should the agencies choose to do so. The Recommendation leaves the weighing and balancing of those factors to the sound discretion of individual agencies.
Recommendation Providing Access to Agency Litigation Materials 1. Agencies should consider providing access on their websites to publicly filed pleadings, briefs, and settlements, as well as court decisions bearing on agencies regulatory or enforcement activities collectively agency litigation materials.
2. Should an agency choose to post such material, an agency with a large volume of court litigation could decide not to post documents from every case. The agency might, for instance, post examples of filings from routine litigation and all or a portion of the filings from cases raising important or unusual questions.
3. In determining whether to provide access to agency litigation materials on their websites, and in determining which types of agency litigation materials to include on their websites, among the factors agencies should consider are the following:
a. The publics interest in having ready access to certain categories of the agencys litigation materials;
b. The extent to which providing access to agency litigation materials on the agencys website will advance the agencys mission;
7 Cf. Admin. Conf. of the U.S., Recommendation 20171, Adjudication Materials on Agency websites, 82 FR 31,039, 31,040 July 5, 2017
Agencies that adjudicate large volumes of cases that do not vary considerably in terms of their factual contexts or the legal analyses employed in their dispositions should consider disclosing on their websites a representative sampling of actual cases and associated adjudication materials..

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c. The internal benefits of maintaining a web page providing access to certain types of agency litigation materials;
d. The costs of creating and maintaining a web page providing access to the types of agency litigation materials the agency sees fit to include;
e. The nature of the agencys litigation portfolio, including the quantity of litigation materials the agency generates each year;
f. The degree to which the agencys existing technological capacity can accommodate the creation and maintenance of a web page providing access to certain types of agency litigation materials;
g. The availability and cost of other technological services that may more reliably and effectively give access to agency litigation material because of its scale or volume and the wide variety of issues and matters involved; and h. The risk of disclosure or increased dissemination of confidential or sensitive information of private litigants.
4. In determining which agency litigation materials to include on their websites, agencies should ensure that they have implemented appropriate safeguards to protect relevant privacy or business interests implicated by the disclosure of agency litigation materials. Each agency should implement a protocol to ensure that, before a document is posted to the agencys litigation web page, the document has been reviewed and determined not to contain confidential information, such as trade secrets and personal identifying information.
5. Agencies should disclose materials in a way that gives a full and accurate picture of their litigating positions. To provide proper context, agencies should:
a. Use objective, clear, and publicly posted criteria to determine which agency litigation materials the agencies will publish on their websites;
b. Regularly review their websites to ensure the agency litigation materials posted there especially court opinions are complete and up-to-date, and consider including notations regarding when material on the web page was last updated;
c. Provide appropriate context for agency litigation materials, at least when failure to do so might confuse or mislead the public;
d. Explain the types of litigation in which the agency is involved and other ways to search for any additional agency litigation materials not included on the agencys litigation web page, as well as opposing counsels litigation filings;
e. When resources permit, consider posting opposing parties litigation filings when they are significant or important to understanding an issue;
f. Neither present litigation materials as a means of setting policy, nor use those materials to circumvent rulemaking processes;
g. Ensure that descriptions of agency litigation materials, if any, fairly reflect the litigation; and h. Recognize that some types of agency litigation materials may be of greater significance than others.
6. Agencies that choose to post significant quantities of agency litigation materials on
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