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*Executive Committee Member
CHAIR
*C. Boyden Gray
2445 M Street NW
Washington, DC 20037-1435
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*Neil R. Eisner
U. S. Department of Transportation
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George Washington University Law School
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*Cynthia A. Drew
U.S. Department of Justice
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Boston University School of Law
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740 15th Street, NW
Washington, DC 20005-1022
(202) 662-1582
May
31, 2002
Thomas
N. Pyke Jr.
Chief Information Officer, Room 5029B
Department of Commerce
Washington DC 20230
Re:
Information Quality, 67 FR 22398
Dear
Mr. Pyke:
The
Section of Administrative Law and Regulatory Practice of the American Bar
Association is pleased to submit comments on the proposed guidance for data
quality that your agency has proposed under Section 515 of Public Law 106-554.
The views expressed herein are presented on behalf of the Section of
Administrative Law and Regulatory Practice. They have not been approved by
the House of Delegates or the Board of Governors of the American Bar
Association and, accordingly, should not be construed as representing the
position of the Association.
These
comments are focused on the mechanisms proposed for implementation of
section 515’s "correction of information that does not comply with
(OMB guidance)". In commenting on the mechanisms we hope to improve
them; these comments do not suggest that any of the substantive objectives
of the agency discussed in your published proposal would or would not have
our Section’s support. Because many of the nation’s experts in the
administrative process and information policy are members of our Section,
we hope to speak to the process and procedural aspects of the proposed
guidelines.
1.
We
agree with the positive statement defining "accurate" in the
context of non-quantitative data ("Objectivity" para. 2). This is
a fair statement of how to measure qualitative or subjective matters as
being reasonably "accurate".
2.
None
of the other dozens of federal agencies has adopted the rigid approach to
deterring correction requests which this Draft proposes. At 22402, item
(e)(7)(i), the Department chooses to create a form of summary judgment that
will terminate with prejudice the majority of incoming correction requests.
Individuals rarely can win the next step if their request alone is the
basis for such a daunting determination. There will be small businesses and
individuals whose unsophisticated effort to seek corrections without legal
advice is meritorious, where an actual error exists on the website, but the
request is rejected because the words of the request are deemed
insufficient. We observe that no other federal agency erects such an entry
barrier against the person seeking correction, nor does OMB suggest such
barriers.
3.
At
22402, (e)(8)(i) the barrier gets steeper and the odds of success harsher
against the individual. The agency wins if it violated its own standards
but would have reached the same result (in the opinion of the very same
office that committed the violation). It is helpful to observe that no
other federal agency’s 515 rules are so hostile to correction requests, and
none allow their units to violate a standard but then excuse themselves
because of their own conclusion that they would have reached the same
conclusion. Since there is no hearing and this occurs within the same
office that has done every step of compiling, publishing, and then
evaluating the challenge, this approach raises very serious questions of
fairness and compliance with the spirit of the correction provisions of
section 515.
4.
But
the highest barrier of all – found in no other agency’s 515 rules, to our
knowledge – excuses an error from being corrected if correction would
necessitate "a commitment of resources unavailable to that
official." 22402, ((e)(8)(iii)) OMB has listed some reasons for not
making corrections, 67 F.R. 8460 col. 2 item C, but funding is not listed.
The seeds of a possible claim of abuse of discretion are sown when the
agency person in charge of the erroneous data is excused from correcting
the error on the excuse of deficient staff resources. Perhaps the
Department could ask OMB to add an "extraordinary budget
circumstances" clause in its exceptions, but the cost of flagging a
data base entry is miniscule. This noncorrection of known errors seems to
be too smooth a path of evasion by the most interested staff members,
against those requesters seeking legitimate redress and whose claim of
error is acknowledged to be correct.
5.
The
difficulties for requesters continue on appeal at 22402, (f)(iii) with the
concept that an "acceptable degree of imprecision or error"
excuses an acknowledged agency error. The "acceptable degree of
imprecision" is an element of reproducibility, 67 F.R. 8460 col. 3
item 10, but this use of the term and expansion to "acceptable
error" seems incongruous. This approach in (f)(iii)(B) again makes an
appeal virtually impossible for the individual challenger since the staff
who made the error retrospectively declare it to have been an acceptable
error and their superior is likely to concur.
6.
Legal
requirements for proof of "standing" arise from the federal
courts’ Article III "case or controversy" norms. A person dealing
with a federal agency does not normally have to bear the same burden of
proving their legal standing to interact with the agency at the
administrative level. OMB Guidelines and Section 515 itself are silent on
the term "affected person" (67 F.R. 8452, 8459-60). Yet at 22401
(d)(1) the Draft sets the very highest barrier of any other agency, for the
definition of who is "affected". To our knowledge no other agency
has taken the judicial "standing" test and applied it as a
threshold limitation for 515 correction requesters. This varies from OMB’s
Guidelines which are more receptive to correction requests, and the
importation into administrative mechanisms of the judicial "standing"
barrier is a substantial imposition against requesters. It is much more
likely to draw litigation against the Department for having erected the
barrier, and the transaction costs of the litigation by a dissatisfied
requester would be an additional expense that other agencies will not
undertake. In addition, the level of specificity needed for one to get past
this barrier cuts out most individual consumers or small business people
who lack the sophistication to overcome factors i, ii, and iii in order to
have their request even considered by the Department. We recommend that
part (d)(1) be replaced with the EPA’s definition: "Affected person
means a person who may benefit or be harmed by the disseminated
information." (67 F.R. 21234, www.epa.gov/oei/qualityguidelines at p.
22 line 716.)
7.
No
other agency has chosen to summarily dismiss correction requests on grounds
they would "serve no useful purpose" (22401 col. 3 at (3)(i)(C)).
We did not see Section 515 or OMB Guidelines language which supports such a
dismissal. It may be virtually impossible for an individual or small
business to overcome this claim by demonstrating to the Department’s
satisfaction that there is a "systemic problem resulting in consistent
errors in the dissemination of such information".
8.
By
the point at which a substantive evaluation is made, few correction
requests are likely to be processed; 22402 at (6)(ii) and (7)(i) cumulates
the procedural barriers to consideration in a way that seems extreme
compared with the OMB Guidelines. Again, we note that virtually all other
federal agencies will look at the merits of the correction request and
reply to the requester; the effect of (6)(ii)’s summary judgment at the
intake level will be to generate much dissatisfaction with the Department’s
515 compliance. The most unsatisfactory outcome would be an acknowledged
fact error in a Commerce Department website or publication, which is
perpetuated because the barriers to even obtaining substantive examination
of the error were set so very high. The reason given for 515’s existence
was dissatisfaction with errors; an approach which compounds
dissatisfaction seems counter-productive.
Thank
you for considering these comments. If you wish clarification of any
portions, please contact Professor James O’Reilly, Chair of the Committee
on Government Information & Privacy, at (513) 556-0062.
Sincerely,
C.
Boyden Gray
Section
Chair
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