Administrative Record: Contents, Court Use, and Exclusions

An administrative record is the set of documents, data, and materials a federal agency actually reviewed or had before it when it made a specific decision. If that decision is later challenged in court, the record is almost the entire case: judges read what the agency read and decide whether the agency’s reasoning holds up, rather than hearing new witnesses or accepting fresh evidence. Everything about how these disputes work — what belongs in the file, what stays out, what you can do about gaps — flows from that basic idea.

What Belongs in the Record

The record should capture everything the decision-maker reviewed or had access to during the process. That means factual reports, sampling data, site inspections, technical evaluations, and any studies or data sets the agency considered, whether or not the final decision explicitly cited them.¹ Guidance documents, engineering handbooks, and technical literature that informed the agency’s analysis belong in the file too.

Public comments submitted during any comment period are included, along with transcripts from hearings if any were held. The final decision document and the agency’s stated rationale sit at the top of the collection.¹

The record is frozen in time. Only materials that existed and were available to the agency before the decision date belong. Information created or discovered afterward is excluded. A reviewing court sees the same reality the agency faced when it chose a course of action, not a retrospectively improved version.

How structured that file looks depends on the type of proceeding. In formal adjudications, where a statute requires an on-the-record hearing, the record is tightly defined by law: the hearing transcript, exhibits, and all papers filed constitute the exclusive record for the decision.² The agency cannot rely on anything outside that file, and the court cannot look beyond it. Informal adjudications and rulemakings are messier. The APA imposes far fewer procedural requirements on informal proceedings, so the record is whatever the agency compiles.³ Most fights about completeness happen here, because the agency has more discretion over what it includes.

When the agency files the record with the court, it must certify completeness, typically through a sworn statement from a program official.⁴ That certification triggers a legal presumption of regularity: courts assume the agency compiled the record completely and accurately unless you show otherwise. Overcoming the presumption takes strong evidence of bad faith or deliberate omission.

How Courts Use the Record

Judicial review of agency action doesn’t look like a trial. The Supreme Court established in Citizens to Preserve Overton Park v. Volpe that review must be based on the full administrative record that was before the agency at the time of its decision.⁵ The judge reads the record to decide whether the agency’s reasoning holds up. No new witnesses. No fresh exhibits. The court reviews the agency’s work; it doesn’t redo it.

The Administrative Procedure Act sets out the standards a court may apply, depending on the type of action:⁶

Arbitrary and capricious, the usual test for informal agency actions: whether the agency examined the relevant information and offered a rational explanation.
Substantial evidence, for formal proceedings under the APA’s hearing requirements: whether a reasonable person could have reached the agency’s conclusion on the record as a whole.
Contrary to a constitutional right.
In excess of the statutory authority Congress gave the agency.
Without required procedure, when the agency skipped a mandated step.
De novo review, in rare cases where the court does its own fact-finding.

Because most challenged actions are informal, the arbitrary and capricious test dominates. The Supreme Court’s decision in Motor Vehicle Manufacturers Association v. State Farm spelled out what it means: the agency must examine the relevant data, articulate a satisfactory explanation, and draw a rational connection between the facts and the choice it made.⁷ The court isn’t asking whether the agency made the best possible decision. It’s asking whether the decision was reasonable given what the agency knew.

An action crosses into arbitrary territory when the agency relied on factors Congress didn’t intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation that contradicts the evidence in its own record.⁷ The record’s quality matters enormously here. A thin file with gaps makes it hard for the agency to show it considered the relevant factors. A well-built record with clear documentation of the agency’s reasoning is harder to attack.

What Stays Out

Not everything an agency generates during a decision-making process ends up in the record. Certain categories are legally protected.

Deliberative Process Privilege

The deliberative process privilege shields internal communications that are both predecisional and deliberative. A document is predecisional if it was created before the final decision; it’s deliberative if it was prepared to help the agency work through its options. Internal drafts, staff recommendations, and preliminary analyses often qualify.¹ The rationale is straightforward: if every internal critique became public in litigation, staff would stop putting candid analysis in writing.

There’s a catch. If an internal document contains factual information that actually formed the basis for the decision, and that information doesn’t appear anywhere else in the record, the agency is supposed to include it. The privilege protects opinions and policy deliberations, not the underlying facts the agency relied on.

Attorney-Client Privilege

Communications between agency officials and their legal counsel about the matter under review are separately protected, in the same way attorney-client privilege works in private litigation.

Confidential Business Information

When a decision involves proprietary data, trade secrets, or other commercially sensitive information submitted by regulated parties, that material may be included in the record but placed under a protective order. A party seeking protection must show that the harm from public disclosure outweighs the benefits and must provide the court with a sealed copy for inspection.⁸

Challenging a Withholding

When an agency withholds a document under a privilege, DOJ guidance directs it to identify the withheld material in the record’s index, note that it is being withheld, and state the basis.⁹ If you believe the agency improperly invoked a privilege to bury unfavorable documents, you can ask the court to conduct an in camera review, meaning the judge examines the withheld documents privately to decide whether the claimed privilege actually applies. Courts typically order in camera review when the agency’s descriptions are too vague to evaluate, or when there’s evidence of bad faith.¹⁰ Where the agency provided reasonably detailed descriptions and there’s no sign of bad faith, courts often decline.

Fixing a Record That’s Missing Something

Two different motions attack two different problems, and confusing them can sink a case.

Completing the Record

A motion to complete asks the court to order the agency to add documents that were part of the decision-making process but were left out of the filed record. The argument is that the agency’s compilation is incomplete. Because the filed record carries a presumption of completeness, you need specific evidence that the agency had relevant materials it failed to disclose.¹¹

Supplementing the Record

A motion to supplement is more aggressive. You’re asking the court to allow evidence that was never before the agency at all. Courts permit this only in narrow circumstances. The usual grounds are a strong showing of bad faith or improper behavior; background information the court needs to understand technical terms or evaluate whether the agency considered relevant factors; or an agency explanation so inadequate that meaningful review is impossible without more.⁹

Courts guard the line between the two motions because supplementation threatens to turn deferential review into a fresh trial. If every disappointed party could introduce new evidence the agency never saw, the entire structure of review would collapse. Recognized exceptions that let extra-record evidence in vary by circuit but generally include agency deliberate or negligent exclusion of adverse documents, subject matter so technical the court needs expert explanation, agency explanations so thin the court cannot tell whether the decision was reasonable, and reliance by the agency on substantial materials it never placed in the record. Every circuit demands a strong showing.⁹

Remand When the Record Fails

If the court decides the record cannot support the agency’s action, the usual remedy is remand: the court sends the matter back rather than deciding the issue itself. The agency reopens the proceedings, develops the record further, and either reaffirms or revises its original decision.¹² Remand preserves the separation of powers. Judges don’t have the technical expertise or political accountability to make policy calls about environmental cleanups, drug approvals, or broadcast licensing, so when the record is inadequate, the right answer is usually to make the agency do its job properly.

Before ordering remand, a court may allow limited extra-record discovery. If the record’s gaps suggest bad faith, the judge might permit depositions of agency personnel or require affidavits explaining why certain materials were omitted.⁹ This kind of discovery is unusual but available where the compilation looks deliberately incomplete.

Before You Can Even Get to the Record

Two threshold requirements have to be cleared before anything above matters. You need standing. The APA grants judicial review to any person who suffers a legal wrong because of agency action, or who is adversely affected or aggrieved by it.¹³ If the decision doesn’t directly harm you, you don’t get to challenge it.

The action also has to be final. The APA limits judicial review to final agency action for which there’s no other adequate court remedy.¹⁴ Preliminary rulings, procedural decisions, and intermediate steps generally aren’t reviewable on their own. You can challenge them later as part of a review of the final decision. If a specific statute requires you to exhaust internal agency appeals and the agency makes the action inoperative in the meantime, you’ll need to complete that process first.

Filing Deadlines

When judicial review happens in a federal appellate court, the agency must file the record with the circuit clerk within 40 days of being served with a petition for review. The court can shorten or extend the window.¹⁵ Under the appellate rules, the record on review consists of the agency’s order, any findings or reports it’s based on, and all pleadings, evidence, and other parts of the proceedings before the agency.¹⁶

In federal district court, deadlines for producing the record are typically set by local court rules rather than a single national standard. Many districts require the agency to file a certified list of the record’s contents within 30 days of answering the complaint, though this varies by courthouse. Check the local rules for your district early. Missing these deadlines or failing to object to the agency’s record promptly can limit your ability to contest what’s included later on.

1
eCFR. 40 CFR 300.810 – Contents of the Administrative Record File
2
Office of the Law Revision Counsel. 5 USC 556 – Hearings; Presiding Employees; Powers and Duties; Burden of Proof; Evidence; Record as Basis of Decision
3
Congressional Research Service. Informal Administrative Adjudication: An Overview
4
U.S. Environmental Protection Agency. Revised Guidance on Compiling Administrative Records for CERCLA Response Actions
5
Library of Congress. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402
6
Office of the Law Revision Counsel. 5 USC 706 – Scope of Review
7
Legal Information Institute. Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29
8
eCFR. 31 CFR 501.733 – Evidence: Confidential Information, Protective Orders
9
U.S. Department of Justice. Guidance to Federal Agencies on Compiling the Administrative Record
10
United States Department of Justice. In Camera Review
11
Administrative Conference of the United States. Administrative Record in Informal Rulemaking
12
eCFR. 21 CFR 10.45 – Court Review of Final Administrative Action; Exhaustion of Administrative Remedies
13
Office of the Law Revision Counsel. 5 USC 702 – Right of Review
14
Office of the Law Revision Counsel. 5 USC 704 – Actions Reviewable
15
Legal Information Institute. Federal Rules of Appellate Procedure Rule 17 – Filing the Record
16
Legal Information Institute. Federal Rules of Appellate Procedure Rule 16 – The Record on Review or Enforcement