DATA QUALITY ACT: FEDERAL AGENCIES MUST PROMULGATE DATA QUALITY GUIDELINES
In December 2000, Congress passed the Data Quality Act (the "DQA"), a little-noticed provision that has the potential to dramatically change how federal agencies make their decisions in matters as varied as Environmental Impact Statements and Endangered Species Act permits. The DQA, which went into effect October 1, 2002, requires every federal agency, including the Environmental Protection Agency and the U.S. Fish and Wildlife Service, to establish "guidelines ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information)." The key provisions of the DQA require that these agencies:
establish agency data quality guidelines consistent with general standards of reliability, utility, and objectivity; ensure that all information they disseminate to the public complies with those guidelines; and
allow citizens to petition the agency to challenge particular information as inconsistent with the guidelines.
Agency decisions on DQA citizen petitions would likely be subject to challenge in court.
Proponents of the DQA suggest that it will improve the information base on which policies are made. As James Tozzi of the Center for Regulatory Effectiveness recently told The New York Times, "Now in the world's most powerful government you're going to have to issue information that's accurate." Others point out that the law, by setting a government standard for scientific quality, could also help industry prevail in lawsuits claiming rules relied on poor data or analysis. "This is the biggest sleeper there is in the regulatory area and will have an impact so far beyond anything people can imagine," said William L. Kovacs, the vice president for environment, technology and regulatory affairs of the United States Chamber of Commerce. "This is the first time where, if the data is not good, you can actually begin challenging the agency."
The following summary demonstrates how the DQA could have these substantial impacts.
The Data Quality Act was passed as part of the FY 2001 Consolidated Appropriations Act (Pub. L. No. 106-554. codified at 44 U.S.C. § 3516, note.) The DQA requires the Office of Management and Budget ("OMB") to develop government-wide standards for data quality in the form of guidelines, which OMB has done through a series of rule makings. See 67 Fed. Reg. 8,452 (Feb. 22, 2002). Individual agencies must then promulgate their own conforming guidelines based upon OMB's model, taking into account each agency's unique programs and information products. The agencies' conforming Data Quality guidelines must include an administrative mechanism through which the interested public may petition for the correction of information which is inaccurate, misleading, or otherwise not in accordance with the guidelines.
Data Quality Standards
Under the Data Quality Act, as interpreted by the OMB guidelines, agency information disseminated to the public is subject to the following new quality standards:
It must be based on the best available, peer-reviewed science and supporting studies conducted in accordance with sound and objective scientific practices; and on data collected by accepted methods or best available methods (if the reliability of the method and the nature of the decision justifies use of the data). It must have utility. Utility requires that the information be useful to intended users. These include Congress and the Executive Branch, as well as the public.
It must have objectivity. Objectivity requires that agency information be accurate, reliable, unbiased, and developed using sound statistical and research methods.
The federal agencies' data quality guidelines must be consistent with OMB's guidelines, but they could and should also be more program specific.
Agencies subject to the Data Quality Act must also create processes for the public to petition agencies to change information that does not comply with the DQA, as implemented by OMB's and individual agencies' guidelines. All "affected persons" may file a Data Quality Act petition. The OMB guidelines define "affected persons" as "people who may benefit or be harmed by the disseminated information," including "people who are seeking to address information about themselves as well as persons who use information." 66 Fed. Reg. 49,718 (September 28, 2001).
All information currently being disseminated by an agency, for example through availability on the agency's website, is subject to a Data Quality Act petition, regardless of when the information was first disseminated. 66 Fed. Reg. at 49,724. The "affected person," however, carries the burden of demonstrating that the agency failed to comply with the DQA when challenging information released before October 1, 2002. The burden of proof shifts to the agency when the challenged information was released after October 1, 2002, which is when the DQA became effective.
When an affected person files a petition to correct information disseminated by an agency, the agency is required to consider whether and how to correct the disputed information, and the agency is required to notify the affected person of the corrections made. If the person who requested the correction does not agree with the agency's decision, the person may then file for reconsideration within the agency. Each agency is required to establish an administrative appeal process to review the agency's initial decision, and specify time limits in which to resolve such requests for reconsideration. 67 Fed. Reg. at 8,459.
An agency's final decision on an administrative petition under the DQA would be final agency action subject to judicial review under the Administrative Procedure Act. 5 U.S.C. § 504.
For more information, please feel free to contact Alan Glen.
To view a copy of the OMB guidelines, please go to: http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=2002_register&docid=R2-59-filed.pdf