What Duties Do Agencies Owe the Public?

Most of the time, we care about administrative law because administrative agencies want to do something and administrative law tells us whether and how they can do it. In other words, much of administrative law involves constraints on agencies' affirmative initiatives. The last subsection covered these questions.

But sometimes agencies don't want to do something that the public wants them to do. Does administrative law impose any obligations on agencies in these scenarios? As we will see, the answer is yes, in specific situations at least.

This subsection introduces two situations in which the public can ask for something from agencies and the agencies owe a duty to the public to provide it. These are 1) petitions for rulemaking, and 2) transparency disclosures under the Freedom of Information Act. These are not meant to be exhaustive of all instances in which agencies owe a duty to the public. They are included in this casebook for two reasons: first, because a substantial amount of administrative law practice involves invoking these agency obligations by requesting things of agencies, and second because this category of questions raises difficult and important questions about how agencies allocate their often limited resources. See Eric Biber, The Importance of Resource Allocation in Administrative Law, 60 Admin. L. Rev. 1 (2008).

Note that the two obligations discussed in this subsection omit arguably the most fundamental duty that agencies have, which is to follow the law. We will take up that question when we turn to judicial review of agency action (and inaction) in Section 4. Many of the lessons that we will glean from the examination in this subsection will also be relevant then, especially when we talk about judicial review of claims that an agency has failed to take action when it is required to do so by law.