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Record Review DoctrineRecord Review Doctrine
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The "Record Review" Doctrine. With few exceptions, the scope of review in state and federal court of agency decisions is limited to the "administrative record" considered by (or in some cases, available to) the government agency whose decision has been challenged. The purpose of this doctrine is to encourage aggrieved parties to marshal their facts and present their contentions to the administrative agency sufficiently in advance of the agency’s decision to afford the agency an opportunity to fully consider the party’s position on the matter in issue. Conversely, this rule is routinely invoked to preclude parties from "sandbagging" the agency by withholding key evidence during the administrative processes, only to present it for the first time to the reviewing court.
Unless, in the exercise of due diligence, it was impossible for the aggrieved party to fully present its case (including witnesses, documents and other evidence) to the agency prior to its decision, any evidence developed subsequent to the agency’s ruling may be excluded by the reviewing court. Although there is some federal court precedent requiring federal agencies such as the National Park Service to affirmatively develop information readily available (such as through a search of the appropriate scientific literature (see, e.g., Greenpeace USA v. Evans, 688 F.Supp. 579 (W.D. Wash. 1987)), in general courts are lathe to consider any evidence that the aggrieved party failed to present clearly and fully to the agency’s decision makers. Although federal courts generally, and state courts occasionally, will consider "extra-record" evidence in ruling upon the aggrieved party’s motions for temporary restraining orders and preliminary injunctions (e.g., The Wilderness Society V. Tyrell, 701 F.Supp. 1473, 1488-1491, fns. 21, 24, 25, 27 and 28)(E.D. Calif. 1988)), in reviewing the merits of the agency’s decision, most courts, particularly state tribunals, eschew evidence that was not presented to the agency prior to its decision.
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