II.6.4 "used"

The term "used" relates to the stage in government rulemaking or policy development where data are first relied upon. The scope of federal action that would trigger public data access rules is thus at issue in the meaning of this term. As drafted in the proposed revisions, the term -- stated in the past tense -- would seem to imply an OMB intention that data be made publically accessible only after the government has cited or discussed it in the course of policy development.

We believe that such an implication is overly restrictive. Access to study data that comes too late in the process -- only after a notice of proposed rulemaking has been issued, for example -- would be tantamount to no access whatever. Given the time required for (1) a FOIA request to be submitted to the awarding agency, (2) the agency to contact the awardee (3) the awardee to gather the appropriate materials and forward them to the agency, (4) the agency to perform the necessary FOIA review and redactions, (5) the agency to transmit the redacted data to the requester, and (6) the requester to independently analyze the data, there simply would be insufficient time in many cases to prepare a meaningful response to the conclusions presented.

Many important studies are funded, performed, and published with a clear anticipation that the data in the study will be useful in connection with future government rulemaking or policy development. Indeed, it is often for this reason that the studies are funded. Government programs often announce anticipated regulatory initiatives years in advance. Some environmental statutes, for example, contain schedules of substances that are to undergo review and possible further regulatory restriction at some predetermined point. Data relating to federally funded studies in furtherance of this review process clearly should be available for public scrutiny before the formal regulatory proceedings begin.

In addition to the timing aspect of the term "used", OMB should also define a meaningful carve-out for activities that do not influence the development of regulations or policy. Certainly all published studies that are cited in government rules, reports, surveys, risk assessments and other decisional papers should be included. Where materials are merely submitted by the public and not cited by the government decision makers, however, the issue is less clear. In such cases it is often difficult or impossible to determine what studies the government has "used" in shaping policy.

In considering materials submitted but not cited, a larger question is whether the government has -- or should have -- a right to base regulatory decision making on preliminary analyses, on studies paid for exclusively with private funds, or on other data that is not open to public access. Traditional notions of fairness and the right to challenge incriminating evidence dictate that all data adverse to the position of a party impacted by regulatory action should be susceptible of honest scrutiny. We therefore believe that, on balance, if materials are submitted in the course of rulemaking or other government policy formulation, those data should be made available to the public.