In a recent Food and Drug Law Journal article, the Heritage Foundation’s Daren Bakst discusses how to strengthen the Information Quality Act (IQA), a law that could help to improve both the transparency and quality of information disseminated by federal agencies, and improve federal rulemaking that relies on this information.
Bakst explains why the objectivity of federally disseminated information is so important:
Federal agencies promulgate regulations that impact almost every facet of life. When developing regulations, federal agencies utilize information that serves as the foundation for making important policy decisions. The foundation for rules should therefore be accurate and credible information because this is the only way to ensure the integrity of the regulations.
He makes the case that the need for objective information goes well beyond rulemaking. For example, he writes:
The imprimatur of the government, rightly or wrongly, can shape the views of the public, provide regulatory justifications for other federal agencies, and establish the direction of the science on a specific issue. Just as agencies tend to expand their power over time, making it difficult to remove regulations once on the books, it is also very difficult to change the understanding that forms the basis for those regulations.
So, what is the IQA? It’s a federal law, enacted in 2000, which directed the Office of Management and Budget (OMB) to issue government-wide guidance to “ensur[e] and maximiz[e] the quality, objectivity, utility, and integrity of information … disseminated by federal agencies.”
OMB guidance includes specific definitions for key terms. Objectivity is especially important because it has both substantive and presentational aspects. Substantive objectivity requires that information be “accurate, reliable, and unbiased.” Presentational objectivity requires that information be “presented in an accurate, clear, complete, and unbiased manner.” While these descriptors clearly overlap, they have critical differences. Information can be “accurate, reliable, and unbiased” (“Earth will be consumed when the sun becomes a red giant”) but presented in a way that lacks context or is otherwise highly misleading (“this natural process will not occur for several hundred million years”).
OMB guidelines establish a procedural requirement for reproducibility as a predicate for substantive standards, such as objectivity. In particular, covered information must be “capable of being substantially reproduced” by qualified third parties. That is, “independent analysis of the original or supporting data using identical methods [must] generate similar analytic results, subject to an acceptable degree of imprecision or error.” Information that cannot be reproduced is per se noncompliant with the IQA. When data, models, computer code, assumptions, and the like are not disclosed, or disclosed only incompletely, it is impossible to know whether the information disclosed complies with the IQA’s substantive criteria.
The IQA and OMB guidelines also require agencies to establish and implement procedures for the public to seek and obtain the correction of information that does not meet IQA standards. This is a critical component of the IQA. For any standard of conduct to be effective it must be enforceable, and the IQA explicitly empowers the public to be the enforcement agents.
When the IQA was enacted, many critics thought the law would place an untenable burden on agencies, while many supporters expected a dramatic improvement in the quality of information disseminated by agencies and used as the basis for regulation. However, neither the fears of IQA opponents nor the aspirations of its supporters were met; the IQA has had a negligible effect.
Bakst’s article attempts to explain why, extensively focusing on the absence of an independent mechanism to ensure agency compliance. That is, the statute explicitly states that its purpose is to ensure that the public can seek and obtain the correction of error, but neither the statute nor OMB’s guidelines include an enforcement mechanism. Indeed, OMB guidelines allow the agencies themselves to be the arbiters of whether the information they disseminated complies, and if not, whether it is “appropriate” to do anything about it. In short, members of the public can seek the correction of error until they are blue in the face, but as applied, there is virtually nothing they can do to actually obtain its correction.
OMB carved out key exceptions from the IQA, and while some of these exceptions make sense, others clearly do not. Bakst discusses the consequences of OMB’s inexplicable decision to exempt agency press releases and fact sheets. The media rely on press releases rather than original sources, so any errors in these abbreviated documents are sure to be widely propagated. Exempting fact sheets makes even less sense. And it’s anyone’s guess why OMB exempted agency testimony to Congress.
The IQA cannot achieve its statutory purposes unless the scope of its applicability is tightened and until there is independent enforcement of agency compliance, such as through judicial review. To date, courts generally have declined to exercise this authority, mistakenly believing that doing so would supplant the agencies as presumptive subject matter experts. But it would be a small step for courts to infer that agency noncompliance with IQA and its applicable guidelines is arbitrary and capricious. That’s especially so for agency noncompliance with IQA procedural requirements, such as timely and fully responding to error correction requests and appeals.
Some legislators and regulators have been looking hard for ways to improve the transparency of science and economics used to inform regulations. They need look no further than the IQA. If the public could both seek and obtain the correction of information disseminated by agencies that failed to meet minimum quality standards, many (and perhaps most) of the concern about insufficient transparency and bias would go away. Special-purpose regulations aren’t necessary if the IQA is simply allowed to accomplish what Congress intended.