The Data Quality Act (aka Information Quality Act) has been the subject of numerous articles, many of which conclude that:
- there is no significant legislative history on the legislation
- no court has found the Act to be judicially reviewable, and
- the Act is not judicially reviewable.
The first two statements are incorrect and arguments advanced in support of the third conclusion ignore extremely significant information which leads to an opposite conclusion. That said, the erroneous statements regarding lack of legislative history made by a number of authors is a fault, in part, of the Center for Regulatory Effectiveness(CRE). Although CRE was a major participant in development and passage of the legislation through the relevant House Subcommittee, full Committee, full House, and the Senate it failed to make the totality of the said information available to the public, the academy, the Administration and the courts on a timely basis. CRE did, however, publish a considerable amount of information on its website but never in a coherent and analytical manner.
Now nearly two decades after the passage of the Act and as a result of the diligent work of Mr. William Kelly the retired General Counsel of CRE, the many mysteries of the Data Quality Act are unveiled in an eighty-eight page treatise he has written on the subject.
Mr. Kelly presents a heretofore unpublished library of Congressional hearings, intergovernmental correspondence and reports assembled by a painstaking review of archival information some of which was previously unknown to CRE. He also identifies a recent circuit opinion that concludes that the DQA is judicially reviewable.
The purpose of his treatise is far greater than setting the record straight; more importantly, in effect it provides future litigators with a step-by-step guide for pursuing effectively a judicial challenge of the denial of a Request for Correction authorized by the Act. Hopefully his paper will convince the incumbent administration, as well as its successors, that the public is best served if the Executive Branch no longer argues that the Act is not judicially reviewable, but instead devotes it’s time to addressing the merits of the arguments advanced by an aggrieved member of the public.
The paper speaks for itself; but the following excerpts give the reader some idea of its content:
“Yet, most commentators on the IQA, including some litigants on both sides of the judicial review issue, and judicial opinions dismissing challenges based on the IQA, and even OMB, have often treated the IQA as if it were a standalone statute, barely, if ever, mentioning the PRA provisions that it was expressly intended to implement; nor have they attempted to explore the legislative history of those PRA provisions, or even their plain language.”
“The Director [of OMB] explained: ‘Let me, if I may, respond to the substance of the matter [in the House report] and our concern. We have been concerned in the discussion of this policy that right now there are private rights of action in cases where there are consequences. We are concerned about a change of policy that would create rights of action where there aren’t consequences. That is a tremendous expansion of potential litigation. It is the kind of issue we have worked with the Congress on over the years when we discussed regulatory reform generally, and it is a very, very serious matter. . . . The problem is – and this is not unique to this particular proposal – there are many proposals where when you change the administrative process to create rights. There are [sic] also opportunities for review and delay.'”
“Importantly, the D.C. Circuit [in Prime Time Int’l, Inc. v. Vilsack] held that the IQA exemption for information distributed in the course of adjudicatory proceedings was a part of binding legislative regulations that had the force and effect of law. The Court stated: ‘[B]because Congress delegated to OMB authority to develop binding guidelines implementing the IQA, we defer to OMB’s reasonable construction of the statute.'”
” Even though Salt Inst. is essentially a Shelby Amendment case as finally decided, and not a general IQA judicial review precedent, the various agency defendants have managed to leverage both the district and circuit opinions in that case, as well as several other district court decisions lacking any significant analysis, into a string of district court opinions supporting no right to judicial review of information quality issues. They have also persuaded a number of district courts that there is no law to apply under the APA, despite the D.C. Circuit’s opinion in Prime Time holding that the OMB Guidelines have the force of law and the many detailed mandates in the OMB Guidelines.”
“Zero Zone is the most recent, and the first, circuit court opinion to clearly address APA judicial review of IQA issues and hold that the APA provides a cause of action for claims of violation of IQA guidelines.”
Mr. Kelly has produced a treatise on the Data Quality Act which hopefully will provide a basis for its informed use and an enlightened position by the Department of Justice on its reviewability. If not, hopefully it will lead to an enlightened position by the courts.
An emerging market for the Data Quality Act.
The paper is made available through gracious services provided by SSRN.
Significant Source Material
Circuit Ct Opinion DQA Petition Zero Zone Initial
zero zone gov. brief zero zone reply brief
Alternatively, AHRI and Zero Zone contend that DOE’s calculation of SCC was irredeemably flawed. They submit that DOE failed to address three concerns about these calculations raised by the Chamber of Commerce in a letter during the notice and comment period. See App. R.6, Admin. R.79-A2 (fn 25))
[ App. R. 6, Admin R 79 A2 is the DQA Petiton]
AHRI and Zero Zone frame this issue as a violation of the Information Quality Act. See 44 U.S.C. § 3516 note (However, “almost every court that has addressed an Information Quality Act challenge has held that the statute ‘creates no legal rights in any third parties.’ ” Miss. Comm’n on Envtl. Quality v. EPA, 790 F.3d 138, 184 (D.C. Cir. 2015) (quoting Salt Inst. v. Leavitt, 440 F.3d 156, 159 (4th Cir. 2006)). That being said, the APA still affords the petitioners the right to bring this challenge.
If DOJ adheres to its position (or the Fourth Circuit does not correct DOJ) that Salt Inst. (and possibly Miss.Comm’n) held that there is no judicial review of any IQA petition, it would be effectively asserting a circuit split with the Seventh Circuit. However, it appears from the above Seventh Circuit statement that the key to the Seventh Circuit holding is that the Fourth Circuit opinion in Salt Inst., and the other opinions that the government has regularly cited for “no legal rights,” was speaking only with regard to the IQA itself not providing a right of action, and not the APA, and therefore there is no conflict. The Zero Zone opinion should also materially alter OIRA’s annual reports to Congress containing information on IQA litigation. (SSRN@70)
Whatever one believes on what the IQA states on judicial review the APA most certainly allows for judicial review of agency denials of petitions for a correction of information. Zero Zone is the basis of a rebirth of the Data Quality Act.