From tax and workplace safety to immigration and federal criminal law, members of the public seek assistance in navigating complex statutory codes and the substantial grey areas in which agencies exercise their discretion. Inevitably, people want to know how the relevant agency would apply the law to their specific factual scenario. Some agencies respond by giving case-specific advice, or individualised guidance. 

This study examines individualised guidance in the federal bureaucracy—how members of the public seek it, how agencies produce and provide it, and how agency personnel, requesters, and third parties use individualised guidance. After describing its empirical findings, including an extensive survey of agency practices, this study offers recommendations for best practices.

Advising the public is a vital function of the administrative state. It helps reduce uncertainty, improve compliance, and spur useful transactions. It is a classic feature of “good government.” Unsurprisingly, many agencies provide advice routinely and through a variety of channels. In so doing, however, they also face a trade-off between the need to create and implement predictable, consistent, and non-arbitrary rules for conduct while also providing detailed, useful guidance that parties can rely on. As a result, agencies take different approaches to the advisory function.

The variety and prevalence of individualised guidance raises larger normative questions. Members of the public crave individualised guidance, and some agency personnel view providing it as simply a part of their job. Other agencies, however, are skeptical of giving advice in individual cases, based on considerations of cost and the potential for unfairness. This study addresses how these concerns shape agencies’ willingness to provide individualised guidance.