The Information Quality Act: OMBs Guidance and Initial Implementation
CRS Report for Congress
The Information Quality Act:
OMB’s Guidance and Initial Implementation
Updated September 19, 2006
Curtis W. Copeland
Specialist in American National Government
Government and Finance Division
Congressional Research Service ˜ The Library of Congress
The Information Quality Act:
OMB’s Guidance and Initial Implementation
The Information Quality Act (IQA), sometimes referred to as the Data Quality
Act, was enacted in December 2000 as Section 515 of the Treasury and General
Government Appropriations Act for Fiscal Year 2001 (P.L. 106-554). The act
required the Office of Management and Budget (OMB) to issue guidance to federal
agencies designed to ensure the “quality, objectivity, utility, and integrity” of
information disseminated to the public. It also required agencies to issue their own
information quality guidelines, and to establish administrative mechanisms that allow
affected persons to seek correction of information maintained and disseminated by
the agencies that does not comply with the OMB guidance. Although some observers
said the IQA would improve the quality of agency information, others viewed the act
as a tool by which regulated parties could slow or even stop new health, safety, and
Because of the scant legislative history of the IQA and its lack of detail, OMB’s
guidance interpreting key provisions in the act has a major effect on its
implementation. In those guidelines, OMB noted that the act applies to virtually all
federal agencies and established the broad scope of the guidelines by defining
“information” as “any communication or representation of knowledge such as facts
or data, in any medium or form.” Similarly, the guidelines define “dissemination”
as any “agency initiated or sponsored distribution of information to the public.”
OMB indicated that “quality” encompasses elements of utility, objectivity, and
integrity, and said agencies can generally presume that data are “objective” if they
have been subject to an independent peer review process.
In December 2005, OMB provided Congress with a report on the
implementation of the IQA during FY2003 and FY2004. The report said the
agencies received only 85 substantive IQA-related correction requests during those
two fiscal years, but noted that the agencies received many other requests that were
similar to those received before the IQA. Of the 85 requests, 45 were initially denied
by the agencies. Of these, 28 were subsequently appealed, with 13 of those appeals
denied by the end of FY2004. In August 2006, the Government Accountability
Office (GAO) reported that better oversight and guidance by OMB were needed.
GAO’s comments, as well as comments from OMB and others, suggest several
possible areas for improvement of the IQA’s implementation.
A major test of the IQA may be whether agencies’ denials of information
correction requests are subject to judicial review. In March 2006, the U.S. Court of
Appeals for the Fourth Circuit ruled that the act does not permit judicial review. Two
district courts had previously reached a similar conclusion, and the Department of
Justice issued a brief stating that the IQA does not permit judicial review. This report
will be updated in the event of significant developments in the administration,
judicial interpretation, or legislative oversight of the IQA.
The Act and Related Issues..........................................1
Initial Assessments of the IQA...................................3
The IQA and the Shelby Amendment..............................4
OMB’s Information Quality Guidelines................................4
Definition of Key Terms........................................5
Correction Requests and the APA.............................8
Posting of Correction Requests...............................8
OMB’s 2004 Report on IQA Implementation ..........................10
Disposition of Requests........................................13
Requests on Minor Issues......................................14
Other IQA Requests...........................................15
OMB Watch’s View of the OMB Report..........................16
OMB’s 2005 Report on IQA Implementation...........................16
GAO’s 2006 Report on IQA Implementation...........................18
The IQA and Judicial Review.......................................18
District Court Actions.........................................19
Circuit Court Action..........................................21
Possible Improvements and Modifications.........................22
The IQA and Peer Review......................................23
The Information Quality Act:
OMB’s Guidance and Initial Implementation
In recent years, both the volume and the types of information that federal
agencies disseminate to the public have increased dramatically. Some forms of
information dissemination are direct; agencies provide the public with data on such
issues as agricultural production, labor trends, population changes, criminal justice
activities, and environmental emissions. Other forms of information dissemination
are more indirect in that the information forms the basis of agencies’ regulations or
other policies. For example, on the basis of information derived from scientific
research, regulatory agencies may decide to permit or ban the introduction of a new
drug, reduce the levels of exposure to a particular pesticide, or change the way that
automobiles are manufactured. In both forms of dissemination, it is important that
the underlying data be of sufficient quality to ensure accurate information and to
support sound decision making.
In December 2000, Congress passed and the President signed the Treasury and
General Government Appropriations Act for Fiscal Year 2001 (P.L. 106-554).
Section 515 of that more than 700-page bill has subsequently been referred to as the
“Data Quality Act” or the “Information Quality Act” (IQA) (codified at 44 U.S.C.
3504(d)(1) and 3516). Although little noticed at the time, the IQA has subsequently
been the subject of intense debate and controversy. The act required the Office of
Management and Budget (OMB) to issue guidance to federal agencies designed to
ensure the “quality, objectivity, utility, and integrity” of information disseminated to
the public. It also required agencies to issue their own information quality
guidelines, and to establish administrative mechanisms that allow affected persons
to seek correction of information maintained and disseminated by the agencies that
does not comply with the OMB guidance.
This report describes the IQA and OMB’s and the agencies’ information quality
guidelines, noting how several key terms are defined, how risk-related information
is to be treated, and how agencies’ correction processes should be established. The
report also reviews OMB’s report on the first year of the IQA’s implementation,
focusing on the correction requests received during that period and how they were
resolved. It also describes a critical comment on that report by a nongovernmental
organization. Finally, this report examines the issue of judicial review and the IQA,
and explores some suggested improvements and modifications to the act’s
The Act and Related Issues
The IQA amended the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C.
Chapter 35), which already required OMB to develop and oversee the
implementation of policies, principles, standards, and guidelines to apply to federal
agency dissemination of public information. The PRA also required agencies to
manage their information resources to improve the integrity, quality, and utility of
information to all users within and outside the agency.”1 Also already in place were
a variety of nonstatutory requirements related to information dissemination (e.g.,
OMB Circular A-130 on “Management of Federal Information Resources”).
Therefore, the IQA can be seen as an extension of these previous statutory and
Representative Jo Ann Emerson is generally regarded as the primary sponsor of
the IQA.2 The act, in its entirety, reads as follows:
(a) IN GENERAL. — The Director of the Office of Management and Budget
shall, by not later than September 30, 2001, and with public and Federal agency
involvement issue guidelines under sections 3504(d)(1) and 3516 of title 44,
United States Code, that provide 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 in fulfillment of the purposes and provisions of chapter 35 of
title 44, United States Code, commonly referred to as the Paperwork Reduction
(b) CONTENT OF GUIDELINES. — The guidelines under subsection (a) shall
(1) apply to the sharing by Federal agencies of, and access to, information
disseminated by Federal agencies; and (2) require that each Federal agency to
which the guidelines apply (A) issue guidelines ensuring and maximizing the
quality, objectivity, utility, and integrity of information (including statistical
information) disseminated by the agency by not later than 1 year after the date
of issuance of the guidelines under subsection (a); (B) establish administrative
mechanisms allowing affected persons to seek and obtain correction of
information maintained and disseminated by the agency that does not comply
with the guidelines issued under subsection (a); and (C) report periodically to the
Director (i) the number and nature of complaints received by the agency
regarding the accuracy of information disseminated by the agency; and (ii) how
such complaints were handled.
As noted previously, these provisions were inserted as Section 515 of the more than
700-page Treasury and General Government Appropriations Act for Fiscal Year
2001. There were no hearings or debates specifically on these provisions and no
committee reports were filed. However, OMB had previously been urged by
individual Members or committees to develop similar guidance on several previous
1 44 U.S.C. 3506(b)(1)(C).
2 Some press reports attribute the IQA to Jim Tozzi, a former OMB official, who is currently
head of the Center for Regulatory Effectiveness. The Center describes itself on its website
as receiving “financial support, services in kind, and work product from trade associations
and private firms,” and says its primary goals are to ensure that (1) the public has access to
information used to develop federal regulations and (2) information that federal agencies
disseminate to the public is of the highest quality. See [http://www.thecre.com].
occasions.3 In response to these suggestions, in April 2000, OMB said that its
Circular A-130 already established complaint resolution procedures, and also said the
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. We are reluctant to issue more
regulations without a clear sense that they would be useful in promoting data
quality. We are also concerned that new regulations might prove
counterproductive to the goal of increasing data quality ... [in that the] ...4
administrative requirements could consume significant agency resources.
However, with the passage of the IQA in December 2000, OMB was obligated to5
develop the required information quality guidance.
Initial Assessments of the IQA
Supporters of the IQA, many of whom represent businesses and other regulated
parties, considered it an extremely important tool to oversee the work of rulemaking
agencies. In fact, the U.S. Chamber of Commerce6 said the act was “the most
significant change to the federal rulemaking process since the Administrative
Procedure Act was enacted more than 50 years ago,” and said it would have “a
revolutionary impact on the regulatory process.” These supporters contended that the
IQA and the resultant OMB and agency guidelines would improve the quality of
agency science and regulation and force agencies to regulate based on the best
science available. Some of these proponents also maintained that the act would help
agencies defend their regulations against lawsuits and would reduce the number of
Critics of the IQA and the guidelines, including many environmental and public
interest groups such as OMB Watch7 and Public Citizen,8 said the law was a tool by
which regulated parties can slow and possibly stop new health, safety, and
environmental standards, and that could lead to the revision or elimination of existing
3 See, for example, the House report on the Treasury, Postal Service, and General
Government Appropriations Bill, 1999 (H.Rept. 105-592), p. 49.
4 Letter from John T. Spotilla, Administrator of OIRA, to the Honorable Jo Ann Emerson,
April 18, 2000, available at [http://thecre.com/quality/20041012_letter.htm].
5 OMB representatives told CRS on Dec. 9, 2004, that the agency could have issued
guidelines on information quality even if the IQA had not been enacted.
6 The Chamber of Commerce describes itself on its website as the world’s largest not-for-
profit business federation. See [http://www.uschamber.org].
7 OMB Watch describes itself on its website as a “nonprofit research and advocacy
organization dedicated to promoting government accountability and citizen participation in
public policy decisions.” See [http://www.ombwatch.org].
8 Public Citizen describes itself on its website as a “national, nonprofit consumer advocacy
organization founded in 1971 to represent consumer interests in Congress, the executive
branch, and the courts.” See [http://www.citizen.org].
standards. They contended that the act could have a chilling effect on agency
distribution and use of scientific information. These critics foresaw a flood of data
quality challenges, correction requests, and court suits on a wide range of scientific
issues, which could tie up agency resources and significantly delay health, safety, and
environmental regulations. Critics have also noted that since “quality” is a subjective
term and some regulations are based on “best available data,” regulations could be
arbitrarily rejected under the IQA, or may never be developed at all because of
concerns about running afoul of the act.9
The IQA and the Shelby Amendment
The IQA should not be confused with an earlier provision popularly known as
the “Shelby Amendment,” which was a two-sentence rider attached to the Treasury
and Postal section of the Omnibus Consolidated and Emergency Supplemental
Appropriations Act for FY1999 (P.L. 105-277, enacted on October 21, 1998). The
Shelby Amendment was the culmination of a two-year effort to make federally
funded research data (which are often used to develop new regulations) accessible to
the public. The provision directed OMB to amend OMB Circular A-110 “to require
Federal awarding agencies to ensure that all data produced under an award will be
made available to the public through the procedures established under the Freedom
of Information Act” (FOIA, codified at 5 U.S.C. 552). OMB’s revisions to the
circular took effect in November 1999.10 As a result of the changes, in response to
a covered FOIA request, agencies are required to obtain certain types of research data
from grantees and provide the requester access to the data.11 OMB views the Shelby
Amendment and the IQA as compatible and mutually enforcing in that they promote
public access to quality government information.
OMB’s Information Quality Guidelines
Because of the scant legislative history of the IQA and its lack of detail, OMB’s
guidance interpreting key provisions in the act has a major effect on its
implementation. OMB published proposed government-wide IQA guidelines in the
Federal Register on June 28, 2001 (66 Federal Register 34489), and published final
guidelines (with a request for further comments on certain points) on September 28,
2001 (66 Federal Register 49718). OMB later republished the guidelines (after
making changes pursuant to public comments) on February 22, 2002 (67 Federal
9 For a discussion of this issue, see Rick Weiss, “‘Data Quality’ Law is Nemesis of
Regulation,” Washington Post, Aug. 16, 2004, p. A-1.
10 Office of Management and Budget, “OMB Circular A-110, ‘Uniform Administrative
Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals,
and Other Non-Profit Organizations,’” 64 Federal Register 54926, Oct. 8, 1999.
11 For a thorough discussion of the Shelby Amendment and OMB Circular A-110, see CRS
Report RL30376, Public Access to Data From Federally Funded Research: OMB Circular
A-110 and Issues for Congress, by Eric A. Fischer and Genevieve J. Knezo.
Register 8452).12 OMB noted that the guidelines apply to all federal agencies that are
subject to the Paperwork Reduction Act — Cabinet departments, independent
regulatory agencies (e.g., the Federal Communications Commission), and other
independent agencies (e.g., the Environmental Protection Agency, or EPA).
Agencies not subject to the PRA (and therefore not covered by the IQA or OMB’s
guidelines) are the Government Accountability Office (GAO), the Federal Election
Commission, and government-owned contractor-operated facilities (e.g., laboratories
engaged in national defense research and production activities).
The OMB guidelines describe OMB and agency responsibilities under the act,
including agency reporting requirements. For example, the guidelines note that the
IQA essentially requires covered agencies to do three things: (1) issue their own
guidelines by October 1, 2002, (2) establish administrative mechanisms allowing
affected persons to seek correction of information that they believe does not comply
with these guidelines, and (3) report periodically to OMB on the number and nature
of the complaints that the agencies received. The guidelines also require the agencies
to designate the Chief Information Officer or some other official to be responsible for
agency compliance, and required them to develop agency-specific guidelines and
administrative correction mechanisms. OMB said the agencies must permit the
public to comment on their guidelines and correction mechanisms, and then must
submit them to OMB for review before publishing them in final form. OMB also
said the report on the number and nature of complaints received should be done on
a fiscal year basis, with the first such report due to OMB on January 1, 2004.
Definition of Key Terms
The OMB guidelines also define a number of key terms that are undefined in the
IQA, and those definitions have had a significant effect on how the act is
implemented. OMB said “quality” encompasses elements of utility, objectivity, and
integrity. The definitions of some of these and other terms are relatively
straightforward and noncontroversial. For example, OMB defined “utility” as the
“usefulness of the information to its intended users, and said “integrity” refers to the
“security of information — protection of the information from unauthorized access
or revision, to ensure that the information is not compromised through corruption or
falsification.” The definitions of other terms such as “information,” “dissemination,”
and “objectivity” have proven to be much more controversial because they establish
the scope and applicability of the guidelines. Stricter quality standards apply to
“influential” information, so the definition of that term is also important.
Information. OMB established the broad scope of the act by defining
“information” in the guidelines as “any communication or representation of
knowledge such as facts or data, in any medium or form.” OMB went on to say that
the definition includes information that the agency disseminates through its Web
page, but does not include hyperlinks to information that other organizations
12 For a copy of the OMB guidelines, see [http://www.whitehouse.gov/omb/fedreg/
disseminate. Neither does covered “information” include individuals’ opinions that
the agency makes clear are neither factual nor the agency’s views.
Dissemination. The IQA only applies to information that is “disseminated”
by federal agencies, so the definition of that word also has a major effect on the act’s
scope of coverage. The OMB guidelines define “dissemination” as “agency initiated
or sponsored distribution of information to the public.” Therefore, to understand
“dissemination” one must understand the terms “agency initiated” and “agency
Agency Initiated. The guidelines make it clear that an agency can initiate the
distribution of information either directly or indirectly. Cited as examples of agency
initiated disseminations are (1) a risk assessment prepared by the agency to inform
the agency’s formulation of possible regulatory or other action, and (2) information
prepared by an outside party and disseminated by an agency “in a manner that
reasonably suggests that the agency agrees with the information.” In this regard,
OMB said that a third-party study used by an agency in support of a notice of
proposed rulemaking is also covered by the IQA. Others contend, however, that this
position runs counter to the approach taken in the PRA (which the IQA amends),
which suggests that information in a notice of proposed rulemaking is information
that is “used” or “accessed” by the public, not information that is “disseminated” by
an agency (and therefore would not be covered by the IQA).
Agency Sponsored. OMB said an agency has “sponsored” an information
dissemination if it directs a third party to distribute information or if an agency has
the authority to review and approve it before it is distributed. The guidelines go on
to say, however, that dissemination does not include distributions that are limited to
government employees, contractors, or grantees; inter-agency or intra-agency use or
sharing of government information; responses to requests for information under
FOIA, the Privacy Act, or the Federal Advisory Committee Act; or correspondence
with individuals, press releases, or public filings.
Objectivity. The OMB guidelines state that “objectivity” is a function of both
presentation (i.e., whether the information is presented in an accurate, clear,
complete, and unbiased manner) and substance (i.e., whether the information is
accurate, reliable, and unbiased). OMB indicated that agencies can presume that
data are sufficiently “objective” if they have been subject to an independent peer
review process (e.g., as used by scientific journals), but a member of the public can
rebut this presumption “based on a persuasive showing by the petitioner in a
Influential Information. Additional IQA obligations apply to scientific,
financial, or statistical information that is “influential.” OMB representatives told
CRS during the preparation of this report that agencies were given substantial
discretion in how this term is defined because a “one-size-fits-all” approach would
have been inappropriate.13 For example, the guidelines define the word “influential”
13 Meeting with representatives of OMB’s Office of Information and Regulatory Affairs,
in this context as information that “the agency can reasonably determine” will have
or does have a “clear and substantial impact on important public policies or important
private sector decisions” when disseminated to the public. OMB authorized the
covered agencies to define “influential” in ways appropriate for them, but indicated
that the data and analytic results related to influential information should meet certain
“reproducibility” and “transparency” standards. Specifically, OMB said that agency
guidelines should “generally require sufficient transparency about data and methods
that an independent reanalysis could be undertaken by a qualified member of the
public” and would generate similar results. Critics, however, have questioned how
agencies are to know in advance of dissemination when information will be
“influential,” or what constitutes an “important public policy.”
When agencies disseminate information related to the analysis of risks to human
health, safety, and the environment, the OMB guidelines require agencies to “adopt
or adapt” the “quality principles” that Congress established in the Safe Drinking
Water Act Amendments of 1996 (42 U.S.C. 300g-1(b)(3)(A) and (B)). When basing
actions under this act on science, the amendments require EPA to use “the best
available, peer-reviewed science and supporting studies conducted in accordance
with sound and objective scientific practices” and to use “data collected by accepted
methods or best available methods.” When presenting risk information to the public
concerning safe drinking water, the amendments also require EPA (where
“practicable”) to identify a “central estimate of risk” for specific populations, upper-
bound and lower-bound estimates of risk, and “each significant uncertainty identified
in the process of the assessment.” OMB said that through these amendments,
“Congress adopted a basic quality standard for the dissemination of public
information about risks of adverse health effects.” However, critics have questioned
whether it is appropriate for OMB’s guidelines to export risk analysis principles
established for the Safe Drinking Water Act to agency actions under other
environmental, health, and safety statutes.
OMB’s data quality guidelines also generally describe the “administrative
mechanisms” that agencies are required to establish to allow “affected persons to
seek and obtain correction of information maintained and disseminated by the agency
that does not comply with the guidelines.” Specifically, the guidelines state that the
mechanisms should be “flexible, appropriate to the nature and timeliness of the
disseminated information, and incorporated into agency information resources
management and administrative practices.” They go on to say that the agencies must
make decisions within “appropriate time periods,” and must “notify the affected
persons of any corrections made.” Agencies also must establish an “administrative
appeal process” to review the agencies’ initial decisions, and must specify
“appropriate time limits” for the resolution of requests for reconsideration. The
preamble to the guidelines indicates that, to ensure objectivity, the office that
Dec. 9, 2004.
originally disseminates the information should not have responsibility for both the
initial response and resolution of a disagreement.
Correction Requests and the APA. Differences of opinion exist regarding
the relation of these “administrative mechanisms” and the commenting process under
the Administrative Procedure Act (APA).14 Some contend that the APA process
already provides a mechanism by which the affected public can seek correction of
information relied on in rulemaking, so no additional correction process is needed.
Others believe that the mechanisms contemplated in the IQA are in addition to the
APA commenting process. OMB representatives told CRS during this review that
agencies should handle correction requests submitted during the public comment
period for a rule through the APA commenting process.15 After the comment period
is over, though, OMB said that members of the affected public who were dissatisfied
with how their correction requests were handled through the APA process could
appeal the agency’s decision through the agency’s IQA administrative appeal process.
Posting of Correction Requests. On August 30, 2004, OMB instructed
agencies to post their information quality correction requests for FY2004 and for
subsequent years on “publicly-available web pages.”16 Specifically, OMB said
agencies should include “a copy of each correction request, the agency’s formal
response(s), and any communications regarding appeals.” In addition, for each
request, OMB recommended that agencies “provide a few sentences describing the
request and any subsequent response.” OMB said the information should be
disclosed by December 1, 2004.
As noted previously, the IQA required each covered agency to issue its own
information quality guidelines within one year of the issuance of the OMB
guidelines. To develop their guidelines, the agencies reportedly used the OMB
guidelines as a starting point, obtained comments from the public on their proposed
guidelines, and submitted the draft final guidelines to OMB for review and comment.
On October 4, 2002, OMB indicated that it had completed its review of agencies’
draft information quality guidelines, and laid out a series of steps designed to guide
14 The APA (5 U.S.C. 551 et seq.) is the most longstanding and broadly applicable set of
rulemaking requirements. The act generally requires agencies to publish a notice of
proposed rulemaking in the Federal Register, allow public comments, and (after considering
the comments) publish a final rule.
15 Meetings with representatives from OMB’s Office of Information and Regulatory Affairs,
Sept. 15, 2004, and Dec. 9, 2004. The OMB representatives said that correction requests
submitted during other types of comment periods should be handled the same way.
16 For a copy of this memorandum, see [http://www.whitehouse.gov/omb/inforeg/
info_quality_posting_083004.pdf]. OMB said it hoped agencies would eventually post
information quality correspondence for FY2003 as well.
and oversee agencies’ implementation of their guidelines.17 For example, OMB
requested that the agencies provide the office with copies of certain types of
complaints (e.g., those involving “major policy questions” that are likely to be of
interest to more than one agency), and asked to be invited to any meetings with
outside parties concerning those complaints.
OMB has published agencies’ guidelines on its website, although it cautioned
the public that the list is not complete and will be updated as more guidelines are
posted online.18 In that listing, Cabinet departments often provided overall guidelines
as well as guidelines for major subunits within the departments. For example, the
Department of Agriculture provided guidelines for all of the department as well as
guidelines for the Agricultural Research Service, the Food Safety and Inspection
Service, the Forest Service, and six other agencies or offices within the department.
However, separate IQA guidelines are not listed for some major agencies within
Cabinet departments. For example, separate guidelines are not listed for some major
regulatory agencies within the Department of Labor (e.g., the Occupational Safety
and Health Administration and the Mine Safety and Health Administration) or the
Department of Transportation (e.g., the Federal Highway Administration or the
National Highway Traffic Safety Administration). OMB representatives said that it
was up to the departments and agencies to determine how their guidelines would be
presented on this website.19
Concerns have also been raised regarding certain agencies’ IQA guidelines. In
November 2004, GAO reported that the Census Bureau had issued information
quality guidelines that contain general quality goals and principles, and had also
issued a new standard that allows individuals to request corrections.20 However, with
the exception of this standard, GAO said that the Bureau “did not provide specific
guidelines or procedures on the implementation of the general principles articulated
in the information quality guidelines.” GAO recommended that the Bureau
accelerate its efforts to establish comprehensive data quality standards, and include
the implementation of those standards in its plans for the 2010 Census.
Also, in an August 2006 report, GAO reported that the Department of Homeland
Security (DHS) did not have department-level guidelines covering its 22 component
agencies, and that 44 of 86 independent agencies had not posted guidelines on their
websites and may not have them in place.21 As a result, GAO said, “users of
17 For a copy of this memo, see [http://www.whitehouse.gov/omb/inforeg/pmc_graham_
18 For copies of the agencies’ information quality guidelines, see [http://www.whitehouse.
gov/ omb/inforeg/ agency_info_quality_links .html ].
19 Meeting with representatives from OMB’s Office of Information and Regulatory Affairs,
Sept. 15, 2004.
20 U.S. Government Accountability Office, Data Quality: Census Bureau Needs to
Accelerate Efforts to Develop and Implement Data Quality Review Standards, GAO-05-86
(Washington: Nov. 17, 2004).
21 U.S. Government Accountability Office, Information Quality Act: Expanded Oversight
information from these agencies may not know whether agencies have guidelines or
know how to request correction of information.” Also, of the 19 cabinet departments
and agencies that had guidelines, in 15 of the agencies the online information was
difficult to locate. GAO recommended that OMB work with DHS and other agencies
without guidelines to ensure that they fulfill their IQA responsibilities, and clarify its
guidance to agencies on improving the public’s access to IQA information.
OMB’s 2004 Report on IQA Implementation
The IQA required agencies to report periodically to OMB on the information
quality complaints they received, but the act did not require that OMB report to
Congress on its implementation. Subsequently, though, a reporting requirement was
established. The conference report on H.R. 2673, the Consolidated Appropriations
Act of 2004, indicated that the conferees were “concerned that agencies are not
complying fully with the requirements of the [IQA],” and directed OMB to submit
a report to the House and Senate Committees on Appropriations by June 1, 2004, on
whether agencies had been “properly responsive” to public requests for correction of
information pursuant to the IQA.22 The conference report also said that OMB should
suggest changes to the act or to OMB’s guidelines to “improve the accuracy and
transparency of agency science.”
On April 30, 2004, OMB provided a report to Congress on the implementation
of the IQA during FY2003. OMB said the report was based on two types of
information: (1) the reports that the act required agencies to provide to OMB by
January 1, 2004, on the correction requests that they received, and (2) the experiences
and insights from OMB staff who have worked with the agencies. Overall, OMB
said the number of substantive correction requests that the agencies responded to
were “relatively small,” and said it was “premature to make broad statements about
both the impact of the correction request process and the overall responsiveness of
the agencies.” OMB also said that it was “not prepared to make suggestions for
legislative changes at this point in time,” but did make several recommendations to
improve the administration of the act. Specifically, OMB said that agencies should
(1) consider putting their correction requests on publicly available Web pages (as
some agencies have already done), (2) work harder to improve the timeliness of their
responses, (3) ensure that they have sufficient scientific and technical staff to respond
to the requests, (4) consult with OMB earlier in the response process, and (5) work
on guidance that they can use to determine which requests are “influential.”
and Clearer Guidance by the Office of Management and Budget Could Improve Agencies’
Implementation of the Act, GAO-06-765, Aug. 23, 2006.
22 “Implementation of the Federal Data Quality Act,” Congressional Record, daily edition,
vol. 149 (Nov. 25, 2003), p. H12699.
OMB said that several of the preconceptions regarding the act’s implementation
did not appear to be correct.23 For example:
!OMB said that although some assumed that certain agencies would
be overwhelmed by the volume of IQA correction requests, only
about 35 “substantive” requests appeared to have been “stimulated”
by the act during its first year of implementation. Of these 35
requests, more than half were received by EPA, the Department of
Health and Human Services, and the Department of the Interior.
OMB said the agencies classified eight of the requests as
“influential,” 15 as “noninfluential,” and 12 as “undetermined.”24
Many other information correction requests that the agencies had
commonly received before the IQA was enacted were received via
the agencies’ IQA websites and e-mail addresses and handled
through the IQA process. For example, OMB said that of the 24,618
requests received government-wide, the Federal Emergency
Management Agency received 24,433 requests to correct maps used
in the flood insurance program, and the Department of
Transportation received 89 requests to correct individual data items
on the Federal Motor Carrier Safety Administration reports.
!OMB said that although some expected the information quality
correction process to be used only by industry, the requests during
the first year of implementation came from all segments of society
(e.g., private citizens, corporations, farm groups, and liberal and
conservative nongovernmental organizations). However, OMB did
not provide any summary data regarding the number of requests by
source.25 OMB representatives told CRS during the preparation of
this report that some public interest groups made a conscious
decision not to submit correction requests.26
!OMB said other pre-implementation concerns were that the IQA
would slow down the rulemaking process and reduce the issuance of
agency information. The report said, however, that there was no
evidence that the act had affected either the pace or length of
23 For a copy of this report, see [http://www.whitehouse.gov/omb/inforeg/fy03_info_
24 OMB some agencies were reluctant to classify requests as influential because of concerns
from legal staff, lack of clarity regarding how the word is defined, and the potential
implications of classifying a correction request as influential.
25 OMB’s report did contain an appendix listing the correction requests that the agencies
received, including the names of the requesters. Therefore, readers could use this raw data
to determine the most frequent types of requesters.
26 Meeting with representatives from OMB’s Office of Information and Regulatory Affairs,
Dec. 9, 2004.
rulemaking, or that agencies’ information dissemination had
diminished. OMB said it was relying on its own perceptions of
these issues, and did not indicate that it had attempted to
systematically collect those data. Also, OMB said that agencies
discovered that it took longer than expected to respond to correction
requests and to implement the appeals process. In particular, OMB
noted that some of the larger agencies found it difficult to locate the
correct specialist and ensure that he/she has enough time to devote
to the request.
!Finally, OMB said that although the expectation was that the IQA
was aimed primarily at federal rulemaking, most of the correction
requests received during FY2003 were directed at reports, notices,
and agency Web pages — not regulations. OMB also noted, though,
that these disseminations may ultimately lead to federal, state, or
On the other hand, OMB also said that the implementation of the IQA had some
“complications.” In particular, OMB said that it discovered that “the notion of what
constitutes ‘dissemination’ is not straightforward.” For example, the report indicated
that agencies have had to determine whether a regional office employee making an
oral statement at a public meeting, or responding to a citizen via e-mail, constituted
“dissemination” of information. In some cases, requests for correction were denied
because of how the term was defined. For example, in a correction request to the
Forest Service within the Department of Agriculture, the complainant requested
correction of a document entitled “Guidance Criteria for Determining the Effects of
On-Going Grazing and Issuing Term Grazing Permits on Selected Threatened and
Endangered Species, and Species Proposed for Listing and Proposed and Designated
Critical Habitat.” Specifically, the complainant contended that certain information
in that guidance did not incorporate other information published by the Forest
Service, thereby rendering it inaccurate and incomplete. The Forest Service denied
the request, stating that the data did not meet the definition of “disseminated” under
either the Department of Agriculture or the OMB data quality guidelines.27
OMB also said that correction requests often hinge on the interpretations of
science or analyses, and that several reasonable inferences could be drawn when
dealing with uncertain scientific issues. The report noted that most “non-frivolous”
correction requests had been denied because the agencies’ interpretations were
defended as reasonable, and said the requests “might have been better focused if they
had addressed the inadequate treatment of uncertainty rather than the accuracy of
27 Although not presented in the OMB report, the Forest Service’s response to this correction
request indicated that the guidance was primarily intended for internal and interagency use,
and had only been sent to a few members of the public.
Finally, OMB said that although most of the agency guidelines indicate that
correction requests will typically be responded to within 60 to 90 days, many of the
agencies (e.g., EPA and the Departments of Agriculture, Health and Human Services,
and Transportation) were “taking significantly longer to respond.” In particular,
OMB said it took the agencies more than five months to respond to eight of the
requests. OMB said that it expected future requests to be processed and responded
to more quickly now that the agencies have processed their first data quality requests.
Disposition of Requests
OMB said that 16 of the 35 substantive requests for correction were appealed,
and six of those appeals were still pending at the end of FY2003. Although many of
the requests for correction were initially denied by the agencies (e.g., because the
agencies believed the information already met the act’s requirements or because the
agencies said the information subject to the complaint was not covered by the IQA),
many of these and other requests resulted in full or partial corrective actions by the
agencies. For example:
!The Chemical Products Corporation (CPC) requested that an
abstract of a draft technical report be removed from a National
Toxicology Program (NTP) website because a sample tested in the
studies included in the report contained a contaminant that rendered
the report invalid.28 NTP initially added information about the
contaminant to the website, but on appeal the agency decided to
remove the abstract entirely. The response to the appeal also
indicated that additional information from ongoing work would
eventually be incorporated into a revised abstract and technical
report, which would be submitted for peer review and subsequent
!CPC also asked EPA to reconsider the oral reference dose for
barium because it believed an objective scientific evaluation would
determine a different critical effect. EPA initially rejected the
request, but later decided to revise the information for barium to
include a more explicit and transparent analysis of data from animals
and to conduct an independent peer review of the revision.
!An attorney asked EPA to stop disseminating the 1986 “Guidance
for Preventing Asbestos Disease Among Auto Mechanics”
(commonly called the “Gold Book”) and to post a statement on the
agency’s website that the guidance is no longer scientifically current,
or to update the Gold Book. The agency said that it was in the
process of updating the Gold Book, and would include a note in both
hard copy and electronic versions of the current document that the
update was underway.
28 The NTP, within the Department of Health and Human Services, is an interagency
program headquartered at the National Institutes of Health’s National Institute of
Environmental Health Sciences in Research Triangle Park, North Carolina.
!A maritime industry consultant requested that the Maritime
Administration within the Department of Transportation either
correct or remove a study showing the mileage of inland barges or
provide supporting documentation. The Maritime Administration
decided to remove the study from its website and recognized that a
more up-to-date study was needed.
!Several environmental groups requested that the Forest Service
reopen the comment period for a December 2002 proposed rule on
national forest system land and resource management planning
because the review that the Service conducted was not readily
available to the public in an understandable format. The Forest
Service provided the groups with the requested information and
made it available to the public on its website, and said the agency
was still in the process of considering comments on the rule.
In one case, an aquaculture business asked the Department of Commerce’s National
Oceanic and Atmospheric Administration (NOAA) to correct its and the Department
of the Interior’s Fish and Wildlife Service’s reliance on studies used to specify
conditions under which permits would be issued for aquaculture projects engaged in
the rearing of salmon. Although the correction request and initial appeals were
denied, the requesters ultimately indicated they would not continue to appeal because
their concerns had been addressed. The OMB report indicated that the business
viewed this outcome as “mutually beneficial,” and said the company appreciated the
Requests on Minor Issues
As OMB mentioned in its report, many of the IQA correction requests listed in
the office’s report for FY2003 involved relatively minor information quality issues
that the agencies easily addressed. For example:
!A request to the Department of Labor’s Occupational Safety and
Health Administration (OSHA) asked that the name of a trade
association be corrected (from “American Dental Hygiene
Association” to “The American Dental Hygienists’ Association”).
Other OSHA-directed requests were to correct a reference to a table
number in its regulations, to add text and figures to another rule, to
correct the Standard Industrial Classification code for a company,
and to correct the date of publication of an EPA pamphlet.
!A request to the Civil Rights Division of the Department of Justice
noted that the character set used for the Vietnamese translation of a
brochure on voting rights was incorrect.
!A request to the Centers for Disease Control and Prevention within
the Department of Health and Human Services asked for redirection
of a link on the CDC website to general (rather than technical)
information on gonorrhea.
!Many of the requests to the National Archives and Records
Administration (NARA) were to correct minor errors such as (1)
misidentification of individuals in a photograph of President Nixon
and Elvis Presley, (2) incorrect identification of the name of John
Glenn’s spacecraft, and (3) the wrong birthday for a 19th century
West Point cadet.
Although determining whether a requested correction is “minor” is inherently
subjective, nearly half of the correction requests listed in OMB’s report appeared to
be of this nature. For some of the agencies (e.g., OSHA and NARA), virtually all of
their correction requests appeared to be minor.
Other IQA Requests
Several of the correction requests included in the OMB report did not appear to
be handled by the agencies in the same manner or did not appear to be the types of
requests that the OMB guidelines seemed to have contemplated. For example, in
some cases, the agencies treated requests for the addition of information as a data
quality request, with the agencies sometimes acceding to those requests and other
times denying them. For example, the American Heart Association asked that OSHA
add a paragraph to its guidelines for first aid programs mentioning that the
association provides training in cardio-pulmonary resuscitation and the use of
automated external defibrillators. OSHA agreed to do so. In another case, the
Chamber of Commerce requested that EPA revise the minutes of an October 2002
meeting of the Executive Committee of the Science Advisory Board to include a
comment made by the chairman of the committee. EPA denied the request, stating
that documents generated and published by Federal Advisory Committee Act
committees are not considered EPA information disseminations and are therefore not
subject to the IQA correction request process.
In this EPA Science Advisory Board case and several other cases, agencies
denied correction requests as being outside of the scope of the IQA, but nevertheless
included those requests and denials in their IQA reports. For example, the
Competitive Enterprise Institute requested that NOAA within the Department of
Commerce should cease dissemination of the National Assessment on Climate
Change because of fatal data flaws. NOAA denied the request because the agency
said it did not involve “information” that is “disseminated” pursuant to NOAA’s
information quality guidelines, but included the request in its IQA report to OMB.
In still other cases, agencies considered comments received from the public
regarding proposed rules as IQA correction requests. For example, a contractor
association filed a correction request indicating that a proposed rule issued by the
Fish and Wildlife Service within the Department of the Interior did not adequately
consider economic impacts, and used erroneous assumptions and inappropriate
measurements in its analysis of boat speed zones and their effect on manatees. The
Service said it reviewed the comments submitted concerning the proposed rule within
the context of the rulemaking process, and that no further action was necessary. In
another case, EPA said it also considers requests for correction on a proposed rule
during the public commenting process. However, in yet another case, the Consumer
Product Safety Commission indicated that under its information quality guidelines,
the administrative correction mechanism “does not apply to information disseminated
by the CPSC through a comprehensive public comment process.”
OMB Watch’s View of the OMB Report
Although various organizations have expressed concerns about the IQA, OMB’s
guidelines, and the way the statute has been implemented, comments from OMB
Watch — a nonprofit public interest group — tend to exemplify many of those
concerns. In July 2004, OMB Watch published a report entitled “The Reality of Data
Quality Act’s First Year: A Correction of OMB’s Report to Congress.”29 OMB
Watch said that OMB’s IQA report was “seriously flawed” because it was biased and
contained inaccurate data and misleading information. Specifically, the organization
said that OMB’s report:
!understated the number of information quality challenges. (OMB
Watch said there were 98 challenges instead of the 35 that OMB
!overstated the extent to which IQA challenges that were denied were
appealed (OMB Watch said it was 28%, not “most” as OMB said.)
!failed to disclose that nearly three-quarters of the IQA challenges
were from industry.
!provided no data to support its claims that the IQA had not slowed
down agency rulemaking or dissemination activities.
!did not cover such issues as the judicial reviewability of the
information quality guidelines, the scope of OMB’s oversight and
authority, and the burden that agencies bear in implementing the
In summary, OMB Watch said that OMB’s report to Congress “contains so many
problems that it would not meet the standards established under the agency’s own
information quality guidelines.” Nevertheless, OMB Watch said it was clear that the
IQA “has had a significant impact on government operations,” and said Congress
should hold hearings on the act to determine if modifications are needed.
OMB’s 2005 Report on IQA Implementation
In December 2005, as part of its annual report on the costs and benefits of
federal regulations, OMB updated its 2004 report on IQA implementation.30 The
29 For a copy of this report, see [http://www.ombwatch.org/info/dataqualityreport.pdf].
30 Office of Management and Budget, Office of Information and Regulatory Affairs,
Validating Regulatory Analysis: 2005 Report to Congress on the Costs and Benefits of
report provided information on correction requests received in 2003 and 2004,
repeated many of the observations included in the earlier report about IQA
implementation, and offered several “helpful tips for stakeholders interested in
writing an effective correction request.”
OMB noted that agencies’ interpretation of what qualifies as an IQA correction
request “has not been consistent,” with some counting requests that were similar to
those previously received and that did not appear to be generated by the act, and
others not counting those requests. Therefore, OMB cautioned readers “against
drawing any conclusions about trends or year-to-year comparisons.”31 In its report,
OMB decided to include some correction requests “despite the fact that some
arguably are not generated by the Act.” Therefore, OMB revised the number of
correction requests received in FY2003 from 35 to 48. OMB said it considered only
37 requests to be generated by the IQA during FY2004. Therefore, OMB included
a total of 85 correction requests for both years (48 plus 37).
OMB reported that 10 of those 85 requests led to the correction or partial
correction of information (many of which, OMB said, were without significant policy
implications), 13 were resolved through other processes (e.g., treated as comments
on proposed rules), 17 were pending at the end of FY2004, and 45 had been denied.
Of the 45 denied requests (which OMB characterized as “more substantive in
nature”), 28 had been appealed, and 13 had been denied again by the end of the fiscal
Because so few substantive correction requests had been received by the
agencies (85 in two years, compared to more than 3 million Freedom of Information
Act requests during FY2003), OMB said it was still not prepared to make suggestions
for legislative changes to the IQA. However, OMB pointed out that it had issued a
memorandum to the President’s Management Council requesting that agencies post
all IQA correspondence on their websites by December 1, 2004, and noted that many
agencies had done so.
As it did in its earlier report, OMB noted that the number of substantive IQA
requests received had been fewer than some had anticipated, that the correction
request process had been used by virtually all sectors of society, and that, “to our
knowledge, the (act) has not affected the pace or length of rulemakings.”32 OMB also
again noted that it had learned that “what constitutes a ‘dissemination’ is not
straightforward,” and also said that most non-frivolous requests were denied because
“a reasonable scientist could interpret the available information the way the agency
Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities, Dec.
31 Ibid, p. 58.
32 Ibid, p. 65.
had,” meaning “it is possible for neither the agency nor the requestor to be
i n correct .”33
Finally, OMB included a section in its 2005 report on the IQA that listed “tips
that will bolster the quality of correction requests and make them easier for agencies
to address in a rigorous and timely fashion.”34 For example, OMB said the public
should (1) submit correction requests as part of the traditional comment process when
the information is under public review (e.g., when rules are out for public comment);
(2) provide agencies with peer-reviewed references to scientific sources that support
their viewpoint; (3) be as specific as possible and suggest specific changes that need
to be made; and (4) request withdrawal of a dissemination only as a last resort.
GAO’s 2006 Report on IQA Implementation
As noted previously in this report, GAO reported in August 2006 on agencies’
implementation of the IQA, concluding that DHS and a number of independent
agencies did not have guidelines covering their information, and those agencies that
had IQA guidelines often did not make that information easy for the public to35
locate. As a result, GAO recommended that OMB work with DHS and other
agencies without guidelines to ensure that they fulfill their IQA responsibilities, and
clarify its guidance to agencies on improving the public’s access to IQA information.
GAO also said that the significant decline in IQA-related requests from FY2003
to FY2004 was caused by changes in the way that FEMA and other agencies treated
correction requests, and that more than half of the substantive requests that agencies
received during these two years came from businesses, trade groups, or other profit-
oriented organizations. GAO reported that the impact of the IQA on agencies’
operations could not be determined because neither the agencies nor OMB have
mechanisms needed to determine those impacts. Nevertheless, GAO analysis of
requests indicated that they can take from a month to more than two years to resolve,
and that certain program staff or units have seen their workloads increase without an
increase in resources. Finally, GAO said that 16 correction requests related to
rulemaking had been handled under the Administrative Procedure Act, not the IQA.
The IQA and Judicial Review
Some observers see judicial review as the crucial test of the act’s future
effectiveness. If judicial review is permitted, agencies may find themselves subject
to potentially endless legal challenges to their regulations and other types of
information disseminations, which could make them less likely to issue similar
regulations in the future. On the other hand, the absence of judicial review may
33 Ibid, p. 63.
34 Ibid, p. 70.
35 U.S. Government Accountability Office, Information Quality Act, GAO-06-765, op. cit.
encourage agencies to pay less attention to the IQA and make them more subject to
administrative directives provided by OMB. Law journal articles do not convey any
consensus in the legal community as to whether an agency’s response to a data
quality challenge is subject to judicial review, or whether a court in reviewing a
regulation might be influenced by a data quality challenge to the underlying data.
However, recent decisions by two district courts and a circuit court suggest that
judicial review is not available under the act.
District Court Actions
The first lawsuit alleging failure to comply with the act was filed in August 2003
(Competitive Enterprise Institute v. Bush, D.D.C. No 03-1670), and involved the
White House Office of Science and Technology Policy’s report to the President and
Congress on climate change. The lawsuit argued that models used in the climate
change assessment were not peer reviewed and produced erroneous predictions, and
asserted that agency actions were judicially reviewable under the IQA. However, in
November 2003 both parties agreed to dismiss the lawsuit because the White House
science office offered to issue a disclaimer stating that the national assessment had
not been subject to a review under the Office’s data quality standards.
In the first IQA-related case to be addressed by a court, on June 21, 2004, a U.S.
district court ruled that the act does not permit judicial review regarding an agency’s
compliance with its provisions.36 In that case involving the Missouri River, the court
first noted that the IQA does not specifically provide for a private cause of action.
The court then noted that judicial review was generally available under the
Administrative Procedure Act, but not if the agency is acting within the discretion
provided by Congress. That discretion is generally considered to have been provided
if the statute at issue is written in such broad terms that “there is no law to apply.”37
In this case, the court said that such terms as “quality,” “objectivity,” “utility,” and
“integrity” are not defined in the IQA, and the history of the legislation does not
provide any indication as to the scope of these terms. Therefore, absent any
“‘meaningful standard’ against which to evaluate the agency’s discretion, the Court
finds that Congress did not intend the IQA to provide a private cause of action.” In
an article on the case, OMB Watch noted that the court did not address whether the
APA permits judicial review of an agency’s failure to comply with the OMB
guidelines interpreting the IQA or an agency’s compliance with its own guidelines.38
Also, given the limited discussion of the IQA in this case, OMB Watch said it “is
most likely not the last word from the courts” on the IQA.
On June 25, 2004 — four days after the above court decision — the Department
of Justice (DOJ) filed a brief recommending the dismissal of a lawsuit filed under the
IQA by the Chamber of Commerce and the Salt Institute against the National Heart,
Lung, and Blood Institute (NHLBI) within the National Institutes of Health. The
36 In re: Operation of the Missouri River Sys. Litig., No. 03-MD-1555 at 49 (D. Minn. June
37 Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985).
38 For a copy of this article, see [http://www.ombwatch.org/article/articleview/2244].
lawsuit challenged the NHLBI’s statements concerning sodium consumption and
health effects. The DOJ brief said that the plaintiffs lacked standing to challenge the
agency’s underlying study on sodium consumption, and also said that there was no
statutory basis for the court to review the agency’s action because the IQA does not
permit judicial review. Specifically, DOJ said the following:
“Plainly, nothing in the text of the statute indicates that Congress intended for the
federal courts [emphasis in the original] to serve as ongoing monitors of the
‘quality’ of information maintained and disseminated by federal agencies. Rather,
the language and structure of the IQA reflects Congress’s intent that any challenge
to the quality of information disseminated by a federal agency should take place
in administrative proceedings before federal agencies. Simply put, Congress
nowhere provided a new judicial avenue for private parties to enforce the terms
of the IQA.”
DOJ also noted the above-mentioned Missouri River court case, noting that “the first
and only court to address this issue recently determined that the IQA does not provide
for private cause of action.” The Chamber of Commerce and Salt Institute filed a
brief on July 16, 2004, challenging DOJ’s arguments.
On November 15, 2004, the U.S. District Court for the Eastern District of
Virginia (Alexandria Division) ruled in this case that the Salt Institute and the
Chamber of Commerce lacked standing to sue (e.g., they had suffered no “injury in
fact”), and that judicial review of the agency’s decision making was not available.
Specifically, the court ruled that there is no private right of action under the IQA,
saying that the “language in the IQA reflects Congress’s intent that any challenges
to the quality of information disseminated by federal agencies should take place in
administrative proceedings before federal agencies and not the courts.”39 The court
also said that judicial review under the APA was not available because the agency’s
actions did not constitute a “final agency action” (i.e., one in which “rights or
obligations have been determined, or from which legal consequences will flow”),40
and because the agency decisions were within the discretion provided to the agency
by law.41 The court went on to say that
[n]either the IQA nor the OMB guidelines provide judicially manageable
standards that would allow meaningful judicial review to determine whether an
agency properly exercised its discretion in deciding a request to correct a prior
communication. In fact, the guidelines provide that “agencies, in making their
determination of whether or not to correct information, may reject claims made
in bad faith or without justification, and are required to undertake only the degree
of correction that they conclude is appropriate for the nature and timeliness of the
information involved.” 67 Fed. Reg. at 8458. Courts have determined that
39 Salt Institute and the Chamber of Commerce of the United States of America v. Tommy
G. Thompson, Secretary, U.S. Department of Health and Human Services, Civil Action No.
40 See Bennet v. Spear, 520 U.S. 154, 178 (1997).
41 The APA (5 USC701(a)(2)) expressly prohibits judicial review when the agency action
is “committed to agency discretion by law.”
regulations containing similar language granted sufficient discretion to agencies42
to preclude judicial review under the APA.
The court also rejected the plaintiffs’ claim that NHLBI had violated the Shelby
Amendment, again saying that the plaintiffs lacked standing to sue, and that the
agency had merely applied the terms of the circular that OMB had revised to
implement the amendment.
Circuit Court Action
On March 6, 2006, the U.S. Court of Appeals for the Fourth Circuit dismissed
the appeal by the Salt Institute and the Chamber of Commerce, agreeing with the
district court that the appellants lacked standing because they did not suffer an injury
from the published data.43 The Fourth Circuit concluded that the IQA “creates no
legal rights in any third parties,” including any right to “information or to
correctness.” Therefore, the court argued, “appellants cannot establish injury in fact
and, therefore, lack Article III standing to pursue their case in the federal courts.”
The Fourth Circuit’s determination regarding whether agencies’ actions are
subject to judicial review under the IQA may have a major effect on the act’s
implementation. If judicial review is unavailable under the act, some observers
believe that agencies will be more likely to deny information correction requests.
Also, oversight of agencies’ actions to implement the statute will likely fall more
heavily on the executive branch (i.e., OMB) and on Congress.
In the wake of this decision, some critics of the act’s implementation have
suggested that Congress amend the IQA and specifically provide for judicial review.
Others have suggested focusing on new test cases, believing that the Salt Institute
case did not represent the best case to test whether the IQA was subject to judicial
review (e.g., because the appellants’ request was that information be made public, not
that it be corrected). Another approach some have suggested is for OMB to take a
more active role in reviewing agencies’ decisions under the act, perhaps as part of
their regulatory review responsibilities under Executive Order 12866.
Even in the absence of judicial review, the IQA can still have a significant
impact on federal agencies and their information dissemination activities. OMB’s
reports on the implementation of the act during FY2003 and FY2004 provided
numerous examples of agencies changing their information dissemination practices
in response to administrative requests for correction from affected parties. For
example, in June 2004, the National Institute on Aging within the National Institutes
of Health agreed to revise its website and printed publications, eliminating statements
42 Salt Institute v. Thompson, p. 27.
43 Salt Institute; Chamber of Commerce of the United States of America v. Michael O.
Leavitt, Secretary of Health and Human Services, No. 05-1097, Mar. 6, 2006.
indicating that smokeless tobacco products are no less safe than cigarettes. The
change was a direct result of an IQA correction request filed by the National Legal
and Policy Center.44 IQA correction requests have also been filed by groups and in
policy areas that few observers anticipated.45
The IQA may also be having an effect on information dissemination in the states.
The Center for Regulatory Effectiveness has reportedly drafted and promoted a
model state version of the act that is derived from the federal legislation and the
OMB guidelines.46 The State of Wisconsin has adopted data quality legislation,47 and
other states are reportedly planning to do so.
Possible Improvements and Modifications
As noted previously, OMB’s first report to Congress included several suggested
improvements in the administration of the IQA (e.g., putting correction requests on
agencies’ Web pages and improving the timeliness of agencies’ responses to those
requests). None of the actions that OMB suggested appear to require congressional
action; each could be implemented by OMB and the agencies administratively.
Similarly, GAO’s August 2006 recommendations could be implemented by OMB
and the agencies without congressional involvement.
The observations of other interested parties suggest additional possible areas of
clarification or refinement in either the IQA or in any subsequent reporting
requirements. For example, OMB Watch indicated that OMB’s reports to Congress
should have examined the effect that the IQA was having on the pace of the
regulatory process and on agency resources. OMB said it was not aware of any data
indicating that the IQA was slowing down rulemaking, but also said agencies were
finding that it took longer than expected to respond to correction requests and to
implement the appeals process. GAO reported that neither the agencies nor OMB
have mechanisms to determine the costs or other impacts of the IQA on agency
operations. To improve oversight regarding these issues, either Congress or OMB
could initiate the collection of more systematic and reliable data regarding the IQA’s
effect on rulemaking or agencies’ resources.
44 “Government Watchdog Group Successfully Challenges Federal Health Policy on Data
Quality Act Grounds,” PR Newswire, July 14, 2004.
45 For example, in October 2004, Americans for Safe Access (a Berkeley, California
advocacy group) filed an IQA correction request with the Department of Health and Human
Services asserting that the department’s statements that marijuana has no medical use in
treatment in the United States “misstates the scientific evidence and ignores numerous
reports and studies demonstrating the medical utility of marijuana and its constituent
46 Chris Mooney, “Paralysis by Analysis: Jim Tozzi’s Regulation to End All Regulation,”
Washington Monthly, 5 (May 1, 2004), p. 23.
47 2003 Wisconsin Act 145 took effect on July 1, 2004, and relates to administrative
rulemaking regarding small businesses. Among other things, it requires agencies to “ensure
the accuracy, integrity, objectivity, and consistency of the data” used to develop a proposed
OMB Watch also indicated that OMB’s initial report was flawed in its
characterization of the number of correction requests and the source of those
requests. Some of the disagreements on those issues may flow from differences of
opinion regarding what types of actions should be considered in an IQA correction
request. For example, it is not clear whether Congress intended the IQA correction
request process to apply to
!many of the relatively minor issues listed in OMB’s report (e.g., the
dates of publication of a pamphlet or the names of persons in a
!the tens of thousands of requests to revise FEMA flood insurance
rate maps and other items that had been addressed administratively
before the IQA came into being.
!comments filed regarding proposed rules or requests that the public
comment periods for proposed rules be reopened.
OMB’s 2005 report notes that agencies are inconsistent in how they treat such
submissions, with some characterizing them as IQA correction requests and others
deciding not to do so. GAO reported that the sharp decline in the number of IQA
requests was a result of certain agencies changing how they classified correction
requests. To clarify these and other issues, either Congress or OMB could better
define the scope of the act or the issues to be included in any future report.
Clarification could also be provided regarding whether correction requests that the
agencies determine to involve issues outside the scope of the IQA (e.g., a challenge
to the minutes of a federal advisory committee meeting) should be included in a
report that is supposed to list correction requests under the act.
The IQA and Peer Review
In its final IQA guidelines, OMB encouraged (but did not require) the use of peer
reviews in the development of agency-disseminated information. As noted
previously in this report, OMB indicated that agencies can presume that data are
sufficiently “objective” if they have been subject to an independent peer review
process (e.g., as used by scientific journals), but said a member of the public could
rebut this presumption “based on a persuasive showing by the petitioner in a
particular instance.” OMB also indicated that journal peer review may not be
sufficient for information likely to have an important public policy or private sector
impact. Finally, the IQA guidelines set minimum standards for the transparency of
agency-sponsored peer review (e.g., disclosure of reviewers’ prior technical or policy
positions and sources of funding).
On September 15, 2003, OMB published a proposed bulletin on “Peer Review
and Information Quality” in the Federal Register that would, when made final,
provide a standardized process by which all significant regulatory information would
be peer reviewed.48 OMB said it received 187 comments on the draft peer review
bulletin, many of which were critical of the proposed requirements. On April 28,
2004, OMB published a revised peer review bulletin in the Federal Register that the
office said “incorporates many of the diverse perspectives and suggestions voiced
during the comment period.”49 The revised bulletin essentially required agencies to
take three actions (to the extent permitted by law): (1) have a peer review conducted
on all “influential scientific information” that the agency intends to disseminate
(changed from “significant regulatory information” in the proposed bulletin); (2)
have all “highly influential scientific assessments” peer reviewed according to more
specific and demanding standards; and (3) indicate what “influential” and “highly
influential” information the agency plans to peer review in the future. By focusing
on scientific information (not just regulatory information), the bulletin was
significantly broader than the proposed document. It also gave agencies much more
discretion to decide when information is “influential” and therefore requires a peer
review, but also gives OMB significant authority to decide when a “scientific
assessment” is “highly influential”and, therefore, requires more specific peer review
On December 16, 2004, OMB published a final version of the peer review
bulletin that was substantially similar to the April 2004 revised document.50 Changes
to the revised bulletin include a requirement that the names of peer reviewers be
disclosed to the public, and an annual reporting requirement for the agencies to allow
OMB to track how agencies are using the bulletin. The bulletin became effective for
all “influential scientific information” (including “highly influential scientific
assessments”) on June 16, 2005. On December 16, 2005, agencies began posting
peer review agendas for influential scientific information. OMB said in its 2005
report on the IQA that it considered several agencies’ agendas to be “exemplary in
form,” and specifically cited those of the U.S. Coast Guard, the Department of
Transportation, and the Food Safety Inspection Service.
48 Office of Management and Budget, Executive Office of the President, “Proposed Bulletin
on Peer Review and Information Quality,” 68 Federal Register 54023 (Sept. 15, 2003). This
bulletin had been released to the public via OMB’s website on Aug. 29, 2003. For a copy
of this proposed bulletin, see [http://www.whitehouse.gov/omb/inforeg/peer_review_and_
49 Office of Management and Budget, Executive Office of the President, “Revised
Information Quality Bulletin on Peer Review,” 69 Federal Register 23230 (Apr. 28, 2004).
This revised bulletin had been released to the public via OMB’s website on April 15, 2004.
To view a copy of this revised bulletin, see [http://www.whitehouse.gov/omb/inforeg/
50 To view a copy of this final bulletin, see [http://www.whitehouse.gov/omb/inforeg/