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Data Quality Act Provides Under-utilized Tool to Challenge Federal Agency Use of Faulty Information; Four Years After its Enactment Effect of Act Remains Unclear

By: Paul S. Weiland
02/18/05

The Data Quality Act (DQA) provides an important new tool for interested stakeholders including the regulated community to engage federal agencies and dispute agency reliance on faulty information or analysis.  The central provisions of the Act and its implementing guidance require federal agencies to develop data quality guidelines along with a procedure for stakeholders to challenge the quality of data those agencies disseminate.  Two recent judicial decisions conclude that agency responses to decisions made pursuant to the DQA are unreviewable in court.  While the availability of judicial review will continue to be the focus of litigation in the short-term, the prospects for judicial review are uncertain at best.  For this reason, the regulated community should focus instead on the valuable, formalized opportunity that the Act provides to engage federal agencies and seek correction of information at any time along the decision-making continuum.

 

In 2000, with no fanfare, Congress enacted the Data Quality Act (DQA) (also referred to as the Information Quality Act or IQA), 44 U.S.C. 3516 note, as part of an omnibus appropriations bill.  The DQA directs the Office of Management and Budget (OMB) within the Executive Office of the President to issue guidelines that provide policy and procedural guidance to federal agencies for ensuring and maximizing the quality, objectivity, utility, and integrity of information disseminated by federal agencies.  The federal agencies, in turn, must issue their own data quality guidelines and, importantly, establish administrative mechanisms allowing affected persons to seek and obtain correction of information that does not comply with the agency guidelines.  In the words of John Graham, a high-level Bush Administration official, the DQA provides an opportunity "to enhance the competence and accountability of government."

 

To view a copy of the OMB published guidelines implementing the DQA in February 2002, 67 Fed. Reg. 8,452 (Feb. 22, 2002), click here.  The guidelines indicate that federal agencies should adopt specific standards of quality that are appropriate for various categories of information they disseminate; develop a process for reviewing the quality of information before it is disseminated; establish administrative mechanisms allowing affected persons to seek and obtain correction of information that does not comply with OMB or agency guidelines; and report to OMB regarding implementation of the DQA.  According to OMB, the guidelines provide policy and procedural guidance to agencies, which are expected to implement the DQA in a common-sense and workable manner.

 

Federal agency data quality guidelines establish policies and procedures for ensuring and maximizing the quality of information disseminated to the public.  (To view the federal agency information quality guidelines, click here.)  Such federal agency guidelines vary substantially.  But, at a minimum, they include the common elements recommended in the OMB guidelines.  They typically set forth a process for filing a request for correction of information and a timetable for the agency to follow.  In addition, they generally specify categories of information that are not subject to the guidelines.  These may include, inter alia, press releases, public filings, Congressional testimony, correspondence with individuals (including correspondence in relation to Freedom of Information Act requests), and filings in civil or criminal judicial proceedings.  Before filing a request for correction of information, stakeholders should familiarize themselves with agency guidelines.

 

According to OMB, thus far, the volume of requests for correction of information generated by the enactment of the DQA is limited.  (OMB estimates that in FY2003 federal agencies received 35 requests for correction of information as a result of the enactment of the DQA.)  In addition, agencies have received a low number of appeals from requests for correction of information.  In part, because there have been a limited number of requests for correction of information and appeals therefrom, litigation regarding the DQA is in its infancy.  One notable issue is the availability of judicial review of agency decisions made pursuant to the DQA.

 

The first of only two decisions issued by a federal court to date regarding judicial review under the DQA is In Re: Operation of the Missouri River System Litigation, 320 F. Supp.2d 873 (D. Minn. 2004).  The case, which was consolidated by the Judicial Panel on Multidistrict Litigation, involved challenges by multiple stakeholders to the management of a system of dams and reservoirs on the main stem of the Missouri River by the United States Army Corps of Engineers (the "Corps").  One of the plaintiffs – a barge company – alleged that the Corps and the Fish and Wildlife Service violated the DQA by refusing to correct challenged information.  In response, the district court held that the DQA does not provide for private right of action.  A related issue, which was briefed by the parties, is whether the Administrative Procedure Act, 5 U.S.C. 551 et seq., provides persons affected by a final agency action with a cause of action (that is, whether the agency action at issue is committed to agency discretion).  The district court did not squarely decide this issue though it held that there is no meaningful standard against which to evaluate agency discretion.

 

The second decision is Salt Institute v. Thompson, Case No. 04-CV-359 (E.D. Va. Nov. 15, 2004).  The case involved a challenge by the Salt Institute and the U.S. Chamber of Commerce to a study regarding sodium intake and blood pressure funded by the National Heart, Lung, and Blood Institute within the National Institutes of Health.  In their request for correction of information, the Salt Institute and Chamber of Commerce requested correction of information contained in six documents: two press releases; two sets of clinical practice guidelines published in the Journal of the American Medical Association; and two consumer-oriented fact sheets posted on the agency’s website.  The agency denied the initial request and request for reconsideration.  On the United States’ motion to dismiss the subsequent lawsuit, the court held that the DQA does not provide for a private right of action and an agency’s decision to deny a request for correction of information is not reviewable in federal court under the Administrative Procedure Act.  (A notice of appeal of this decision was recently filed by the Salt Institute and the Chamber of Commerce.)

 

Irrespective of the ultimate view of the courts regarding judicial review of agency responses to requests for correction of information, the administrative procedure mandated by Congress in the DQA and implemented by OMB and the federal agencies provides stakeholders with a formalized opportunity to ask agencies to evaluate the quality of information they disseminate.  Whereas existing administrative and environmental laws provide stakeholders with an opportunity to engage agencies at prescribed intervals during agency decision-making processes (for example, the Administrative Procedure Act, Endangered Species Act, National Environmental Policy Act, and National Forest Management Act), the DQA provides stakeholders with an opportunity to seek correction of information at any time along the decision-making continuum.  This supplemental opportunity to establish a dialog with federal agencies may prove a valuable procedural device to individuals and organizations that are affected by agency activities.

 

Paul Weiland has litigated environmental matters in trial and appellate courts under a variety of statutes, including the Clean Water Act, Endangered Species Act, and National Environmental Policy Act.  Until recently, he worked in the Law and Policy Section, Environmental and Natural Resources Division of the U.S. Department of Justice where, among other responsibilities, he was a member of the Missouri River litigation team and he assisted in the defense of the United States from the Data Quality Act claims.  He can be reached at (949) 833-7800 or pweiland@nossaman.com.

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