The Neutered CRS Report On The Data Quality Act
The Congressional Research Service (CRS) has issued a report on the Data Quality Act (DQA). One of CRS’ conclusions is that OMB had insufficient information to form a conclusion that the DQA is not slowing down the regulatory process.
However, OMB Watch hit the nail on the head when they reached the more significant conclusion that can be drawn from reading the report that is:
“the CRS report strongly implies that the DQA, passed without debate or hearing as an appropriations rider, was duplicative and unnecessary. The Paperwork Reduction Act (PRA), amended in 1995, already required OMB to oversee agencies' policies on dissemination of information to the public.”
The report states without any caveat whatsoever:
“There were no hearings or debates on this provision and no committee reports were filed. As noted previously, the language was inserted as Section 515 of the more than 700-page Treasury and General Government Appropriations Act for Fiscal Year 2001.”
This statement is inaccurate, misleading and not supported by the record of a five year Congressional debate. The Congressional debate surrounding passage of the DQA is presented in painstaking detail in the following sections of this note. All of the source material has been on the CRE website for a number of years.
Was The Act Really Passed By Some Midnight Legislation Never Seen Before?
What CRS did not emphasize is that the 1995 Paperwork Reduction Act required OMB to issue guidelines
on the dissemination of information and that OMB refused to do so, notwithstanding additional Congressional
directives in 1998, 1999 and 2000. The 2000 legislation stated plainly that OMB was directed to issue guidelines "under sections 3504(d)(1) and 3516" of the 1995 PRA, and "in fulfillment of the purposes and provisions of" the 1995 PRA.
Want to read the letter in which OMB stonewalled the Congress for the last time and lead to the passage of the Data Quality Act? In an April 2000 letter to a member of Congress (well before the DQA was enacted, and notwithstanding the aforementioned Congressional directives), OMB stated:
“Last summer, OMB canvassed the agency Chief Information Officers (CIOs) about data quality. They indicated to us that they have not been hearing complaints about the quality of federally-disseminated information. None expressed a need for further guidance in this area. Based on our canvass of the CIOs and OMB's own experience, there does not currently appear to be a significant problem in this area.
At the present time, OMB is not convinced that new ‘one-size-fits-all’ rules will add much to the existing OMB guidance and oversight activity and the procedures followed by individual agencies.” .
Click here to read Text of OMB Final Refusal To Issue Guidelines On Data Dissemination As Required In the 1995 Paperwork Reduction Act
Wow, that is informative! You ask federal agencies if there is a problem, the agencies say no, and you ignore at least four Congressional directives.
Surprisingly, the above letter was written two years after the following Congressional directive was given to OMB in 1998 in their appropriations bill:
“The Committee urges the Office of Management and Budget (OMB) to develop, with public and Federal agency involvement, rules providing policy and procedural guidance to Federal agencies for ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by Federal agencies, and information disseminated by non-Federal entities with financial support from the Federal government, in fulfillment of the purposes and provision of the Paperwork Reduction Act of 1995.”
What could be any clearer? OMB stonewalled, and the monkey got them.
What about the 2000 Directive? Click here
Consequently, the Congress acted at the end of 2000 only after years of trying to convince OMB to perform a duty they were directed to perform in the 1995 Paperwork Reduction Act. The Data Quality Act was codified as a note, not an amendment, to the PRA because it was determined non-substantive, i.e., merely establishing a deadline for a non-discretionary duty in existing legislation.
The aforementioned OMB letter drew the line in the sand; what possible reason was there for Congress to hold additional hearings after they spoke a number of times on the issue? The OMB letter was made public by CRE on its heavily read website and provided the basis for discussion by many stakeholders for nearly a half-year before the Congress acted. Any group that was actively involved in this issue had ample time to express their views to members of Congress.
Allegations that the Data Quality Act “duplicates” the Paperwork Reduction Act are unfounded--there was no deadline in the PRA; the DQA corrected that deficiency.
In summary, there were four Congressional directives given to OMB prior to the passage of the DQA, ‘95 PRA (statutory language), ‘98 (report language), ‘99 (oversight), and 2000 (oversight), all of which were ignored by OMB. Opposition was limited to the Clinton OMB, the Bush OMB implemented the DQA which was signed into law by President Clinton shortly before his term ended.
Given This Extensive Legislative Period of Review, How Could It Be There Were No Congressional Hearings?
While we are on our soapbox, we might as well also put to rest the rumor that there were no hearings on the substance of the Data Quality Act. The 1995 Paperwork Reduction Act and its predecessor bills were subject to many hearings over a number of years. Hearings on the ‘95 PRA are relevant because they contained: 1) the requirement that OMB address the issue of the dissemination of information; and 2) the requirement that OMB issue guidelines in order to address information dissemination.
Consider, for example, some of the hearings held in the Senate prior to the passage of the ‘95 PRA. A number of committees have jurisdiction or oversight authority over the PRA. The Senate had PRA or PRA-related hearings in June, ‘88, June, ‘89, Sept, ‘89, Feb, ‘90 and June, ‘91. An exhaustive review of the record would probably identify additional hearings, not to mention those held in the House. Click here for additional detail.
The subject of information dissemination was also addressed in the Paperwork Reduction Act amendments of 1986, so the subject was almost surely discussed prior to then and subsequent to enactment of the Paperwork Reduction Act of 1980. The NGO community has been following the information dissemination issue for a number of years and the record demonstrates that not only did they have the opportunity to participate in the development of federal information policy but they capitalized and exploited every available opportunity.
Consider, for example, the publication published some sixteen years ago by OMB Watch entitled: “Strengthening Federal Information Policy: Opportunities and Realities At OMB” (Bass, Plocher, Nov, 1988). The paper states that in regard to OMB Circular A-130 issued pursuant to the ‘80 Act in 1985:
OMB Watch expressed concern then, as they do now, about information dissemination, but for CRS to imply there was no opportunity for public involvement appears to be a stretch.
The record is clear: 1) federal actions controlling the dissemination of data has been under the microscope of NGOs for two decades; and 2) there were ample hearings for NGOs and other affected parties to offer comments on the OMB Circular which, until passage of the Data Quality Act, was the mechanism required to address issues of information dissemination. The one element that was missing from earlier PRA legislation was that it never set a specific deadline by which OMB was to issue guidelines regarding the dissemination of data; OMB simply ignored directive after directive issued by the Congress to give specific guidance regarding the dissemination of information.
NGOs who opposed any action on information dissemination had no incentive to express their concerns because by taking no action they were accomplishing their goal because of OMB’s (Clinton Administration) steadfast opposition to acting. After nearly a decade of using this strategy, the NGOs’ strategy tanked when President Clinton unexpectedly signed the DQA. The NGOs are now complaining about a lack of Congressional hearings. (See the Appendix to this document for a more complete list of hearings.)
CRE Made Proposals To Act Under OMB Circular A-130 To Avoid The Need For Legislation
NGOs had another opportunity to participate in the information dissemination issue. After OMB issued its “stonewalling” letter in 2000 CRE tried to use OMB Circular A-130 to address data quality concerns.
First, CRE petitioned EPA under circular A-130. Read EPA's response to CRE petition.
EPA said there was no need to act because it was going to develop data quality guidelines at a later date. CRE placed all the correspondence on its website.
It must be noted that when the DQA passed, EPA said that the DQA was not a problem because the Act reflected the actions they had already been taking to ensure that the quality of the data they disseminated to the public was of the highest quality. A similar statement was made by the statistical component of virtually every federal agency.
Second, nearly eighteen months after the ‘98 Congressional directive, and six months prior to action by Congress in 2000, CRE proposed data quality guidelines to OMB. CRE made the following statement to OMB:
“In November of 1998, in connection with the FY 1999 appropriations law, Congress instructed OMB to promulgate a data quality regulation by the end of that fiscal year, reminding OMB that this was a requirement of the Paperwork Reduction Act of 1995. Five years have now passed since enactment of the Congressional mandate in the Paperwork Reduction Act, and the September 30, 1999 deadline in the appropriations statute has also passed, yet no proposed standard or regulation has been published.
To help the process along, CRE has drafted the enclosed Model Notice of Proposed Rulemaking on Data Quality; for use by OMB in complying with Congress' mandate.
Again, CRE posted all of its correspondence on its website to provide interested stakeholders, including NGOs, an opportunity to express their views not only to CRE, but also to Congressional staff who routinely visit the CRE website. A number of stakeholders expressed their views, see the next section for more detail. Again, and not surprisingly, OMB took no action.
Third, CRE even published the comments it received on its proposed model data quality guidelines. Click here for a representative comment.
All of the above correspondence to Federal agencies was posted on the CRE website and the public was invited to comment. The public and NGOs were given every opportunity to present their views on the issue.
Even if the NGOs did not want to offer comments to CRE, the actions by CRE were broadcast in a way that NGOs could have acted then – as they are doing now – lobbying members of Congress and making their positions known to the press and investigative agencies.
Since the CRE website has one of the highest traffic levels of any of the non-federal regulatory websites, it is difficult to comprehend that interested stakeholders were not aware of actions being taken by CRE to have OMB implement Congressional directives over a ten year period.
It is incumbent upon NGOs to demonstrate that none of the forums described herein provided them an opportunity to participate in the debate, either directly, through a federal agency, or by contacting their vocal supporters in Congress over this ten year period.
It is also incumbent for CRS to consider the record described herein when they perform additional studies of the DQA.
Data Dissemination Issues Were Vented In Numerous Non-Hearing Forums Prior To Congressional Passage Of The Data Quality Act
Notwithstanding all the hearings held, why is the gauge of Congressional and public involvement in the “dissemination” issue limited to “hearings”? What about Congressional oversight? What about Congressional inquiries? What about scrutiny by NGOs? What about hearings and committee markups of appropriations bills?
First, OMB has subjected Circular A-130 to no less than seven notice and comment periods over fifteen year period. CRE believes this is more than ample opportunity for NGO's to make their views known. Click here.
Second, regarding appropriation bills, the appropriations committees have the responsibility for ensuring agencies have adequate funds, spend their funds wisely and fulfill Congressional mandates. To this end, once the Congress has passed a substantive law, such as the Paperwork Reduction Act of 1995, it is not unusual for the appropriations committees to give specific mandates. For example, the Congress also enacted Sec. 518, in the same bill which included Sec. 515 on Data Quality, a provision which required the Director of the Office of Management and Budget to evaluate the effectiveness of the PRA on reducing reporting burdens. The Congress has held extensive hearings on agency budgets. Did NGOs request to testify?
Hearings are not held on omnibus appropriation bills, they are voted up or down. So there is no element of any omnibus bill which has had hearings. Furthermore, omnibus bills are aggregated by section or appendix, each section or appendix being reserved for one of the major appropriation bills that is being included in the overall bill.
In each section or appendix, the bill is broken down by title. For example OMB is included in the Treasury and Independent agencies bill. Consequently there are different titles for different agencies. At the end of every appendix, there is a General Provisions section. This section is reserved for "housekeeping" amendments and amendments which address all titles. It is not unusual to insert restatements of Congressional intent in the General Provisions section. However, the general provision section is monitored very closely to assure substantive amendments are not included. The rules of the appropriations committees prohibit the adoption of substantive legislative amendments; if a questionable amendment is contained in an appropriations bill, it is subject to a point of order.
For example, the '98 appropriation bill had two data related provisions, one on data access and the other on data quality. The committees of the House and Senate adopted the House report language for data quality but subjected the data access to a very critical review and floor debate before acting on it. Click here and here.
In the mid to late 1980's, the Act was subject to many inquiries, including those dealing with information dissemination.
The passage of the Paperwork Act of 1980 was a landmark in the regulatory field. It is the only statute which gives OMB direct regulatory authority over agencies and was and continues to be watched very closely. See OMB Testimony in 1980. To this end, critics of the DQA seem to suffer from a “not invented here” syndrome.
More specifically, the issue of information dissemination and access has been the charter of the US National Commission on Libraries and Information Science, a federal institution established in 1970 to address these issues. It holds hearings and conferences, and its publication entitled: Bibliography of Government Information Dissemination Resources demonstrates the attention given to these issues.
OMB Circular A-130: A Record Of OMB Defiance
Whatever one’s position is on the Data Quality Act, the aforementioned sections clearly demonstrate OMB’s defiance of numerous Congressional directives regarding “information dissemination”. OMB Circular A-130 is the vehicle OMB uses to implement the PRA.
With respect to the 1985 and 1993 versions of Circular A-130, the 1985 version only addressed dissemination in terms of making information available, and doing it efficiently.
The 1993 version states that “it is essential that the government ... maximize the usefulness of government information”, and that “Agencies should inform the public as to the limitations inherent in the information dissemination product (e.g., possibility of errors, degree of reliability, and validity) so that users are aware of the quality and integrity of the information.” The Circular also refers to the need to consult with users of government information so that they can improve its quality and relevance.
OMB never improved upon the 1993 version in addressing the quality of information disseminated to the public
in the 1996 and 2000 versions of A-130, notwithstanding a mandate in the ‘95 PRA to do so. As written above,
the ‘95 mandate was reinforced by Congressional Directives in ‘98, ‘99, and 2000 which then was followed
by the DQA at the end of 2000.
We have presented a wealth of information, all of which is, and has been on the CRE website for years. Why was none of the above information used in the preparation of the CRS report? Did the authors consider it irrelevant? Was the information on the CRE website inaccurate?
Is it the policy of the federal government never to use information generated by the “private sector” and only use that developed by NGOs?
Was the information on the CRE website beyond the scope of the report? (Not so, if you come to the same conclusion reached by OMB Watch so quoted in the opening portion of this statement)
Why were the statements of other groups vitally interested in data quality not quoted in the report, such as, for example, the US Chamber of Commerce?
By not using information gathered by non-federal bodies does CRS realize that, as an agent of the Federal government, they are discouraging transparency by stakeholders?
Of critical importance is the choice of issue to be studied. Why did the CRS choose to study whether the DQA slowed down the regulatory process when due to the short period of time the DQA has been in existence we know in advance there is no information to analyze? Is there any hard data in either the OMB or OMB Watch report that justifies additional study by CRS?
Was the preparation of the report a backdoor way to suggest the need for additional Congressional oversight without having to inform the Congress whether or not there is a problem?
Was the premature study of the alleged slowdown of the regulatory process an easier and faster way of responding to NGO pleas to open a debate on the Act without having to address their non-demonstrable assertion that the DQA was enacted through the backdoor? Slowdown? What about citing some statistics for FOIA? In FY 2003, the number of FOIA requests received by all federal departments and agencies was 3,266,394. Processing required approximately 5,000 employee work-years and cost approximately $323 million. (Source: Dept. of Justice).
The DQA, as are all statues, is fair game for Congressional oversight. However, agencies assigned fact-finding jobs have the responsibility for performing a complete analysis.
Why did the CRS relegate the most common, and the most unsupported, challenges to the DQA to innuendo as interpreted by OMB Watch? The two common and unsupported challenges to the DQA are discussed above, are: 1) that the bill was slipped in to the legislative process with no previous Congressional knowledge; and 2) there were no hearings on the substance of the DQA, both of which as indicated above have no basis in fact.
We believe we have debunked these allegations; if CRS or any other interested party has information to the contrary, consider this statement as an invitation to provide your comments to CRE.
CRS is expected to give informed and unbiased information to members of Congress–even when they do not request a study as is the case with the current report prepared by CRS. One might conclude that CRS is looking for a problem in search of a solution–why initiate a costly and burdensome reporting system to OMB on the costs associated with the DQA when there is little or no evidence anything is broken?
Please note that it was not OMB’s idea to write the OMB report. The DQA did not mandate a report; it is a result of a later Congressional directive. OMB had to work with a scarce amount of data available from only a short period of time in which the DQA was in force. For this reason, any CRS studies aimed at the impact of the DQA on NEPA and peer review should not be published until they have an adequate database, which by definition, is not a year or so of experience.
The CRS report on the Data Quality Act was an opportunity to set the record straight on all the misinformation surrounding the Data Quality Act; on that score it does not do very well, but it gets an “A” for accurately representing the views of the very able folks at OMB Watch, who were mentioned an unprecedented number of times – some sixteen times in twenty one pages of text.
CRS is not expected to know every detail on every issue, but it is expected to know the fundamental principle governing the preparation of federal reports–get the views of diverse stakeholders.
In response to the criticism that CRS did not contact other stakeholders, CRS responded: “only OMB Watch had a detailed analysis of OMB’s April report”.
Well, using this decision criterion, who has more information than CRE on the passage of the Act? It is never too late for CRS to address CRE’s concerns, as set forth herein and on its extensive website, in its next report.