New Tool For Battling "Junk Science"

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"Information quality" is the new buzz phrase in Washington, D.C. The Information Quality Act (IQA), passed in late 2000, has greatly influenced the way federal agencies disseminate information, a broadly defined term that includes just about any government document worth reading. The Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget (OMB) recently issued guidance on how federal agencies can ensure that all significant science documents are peer reviewed. This move has significant implications for industry.

The IQA is remarkable for its lack of detail. It mandates that OMB establish government-wide standards for ensuring and maximizing the "quality, objectivity, utility and integrity" of information disseminated by federal agencies. OIRA issued final OMB Guidelines early last year, which, among other things, required issuance of agency-specific guidelines by October 2002.

Several important issues remain unresolved. Significant debate continues, for example, over whether judicial review is available under the IQA. In August, the Competitive Enterprise Institute filed a lawsuit in District Court that will help clarify whether a private party can sue for violations of the IQA and compel an agency to comply with the IQA.

Another open issue is what level of oversight OMB intends to exercise over IQA matters. To date, OMB has been intensely involved, and many believe this will continue.

Finally, a key question remains as to whether the threat of a "Request for Correction," which is the primary remedy for information failing to meet IQA's quality standards, will sufficiently inspire agencies to change the way they disseminate information.

New draft OMB guidance

On August 29, 2003, OMB issued new draft guidance, via a draft Bulletin, that would ensure that all "significant" regulatory science documents undergo appropriate and scientifically rigorous peer review. It would cover scientific or technical information that

qualifies as "influential" under OMB's information-quality guidelines (a class of critically important information); and

is relevant to regulatory policies.

The guidance would not apply to routine statistical and financial data, science not directed toward regulatory issues, material already peer reviewed and certain categories of information such as national security information, individual adjudications and permit applications.

Special provisions apply to "significant regulatory action," action that could have a clear and substantial impact ,"a possible cost of more than $100 million in any year ," on important public policies or private sector decisions. It would also apply to actions that the OIRA Administrator determines to be of significant interagency interest or relevant to an Administration policy priority. The guidance requires that peer reviewers of such actions be independent and "capable of approaching the subject matter in an open-minded and unbiased manner."

The draft guidance also proposes that each agency promptly post any non-frivolous administrative correction request on its Internet Web site or forward a copy to OIRA and, if requested, consult with OIRA regarding the request. OMB seeks comment on all aspects of the draft Bulletin.

Why you should care

The precise legal status of the IQA may be decided, or at least made less fluid, as litigants seek to define more precisely their respective rights. Even if the IQA is determined not to provide private rights of action, OMB has created sufficient incentive in its IQA implementation for federal agencies to pay significantly closer attention to details when disseminating information.

As the number of requests for correction grows, federal agencies petitioned the most will be under pressure from OMB to clean up their acts. This is good news, which, some would suggest, is long overdue given the enormous power that the federal government has to influence decisions through information dissemination.

Bottom-line, the IQA is a new and important tool for advocates to use as creatively and frequently as possible. It will help ensure that information disseminated by the federal government achieves a consistently high standard of accuracy, integrity and quality.

On August 6, the Competitive Enterprise Institute (CEI), based in Washington, D.C., sued the White House Office of Science and Technology for failing to implement the Data Quality Act in "The National Assessment on Climate Change," released in 2000, and in EPA's "Climate Action Report 2002." CEI claims that the reports were based on invalid computer models. According to the Institute, the Hadley Centre for Climate Prediction and Research, which developed the models, acknowledged that they could not be used to determine impact at the national level. "The data fail to meet not only the utility' but also the objectivity' standard [set by IQA]," said senior CEI fellow Christopher Horner.

Lynn Bergeson is a founding shareholder of Bergeson & Campbell, P.C., a Washington, D.C.-based law firm. Contact her at lbergeson@lawbc.com . The views expressed herein are solely those of the author.

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