Data Access

CRE Analysis

13. The proposed revision does not define the term "used" when providing for release of information "used" by the government in developing policies or rules (or regulations).

Comment by U.S. EPA
Comment by USDA's Forest Service

CRE Response:

EPA's comment goes more to the timing of the FOIA request and status of the report's review within the agency than it does to the nature of the "use" of the report itself. With respect to this timing concern, CRE notes that FOIA exempts from disclosure internal "predecisional" agency documents. Data relating to reports in the hands of agency officials who have not in any way acted on the report -- i.e., who have not developed a "policy or rule" (or regulation) -- would not be subject to disclosure.

CRE notes with interest the suggestion made by the U.S. Department of Agriculture's Forest Service that "... a requirement [should] be placed upon developers of policies and rules to keep a complete list of the peer-reviewed, published literature considered during the development process." Such a procedure could simplify the determination of what data will be subject to disclosure under the data access law.

OMB quoted CRE's April 5, 1999 comments at length in the introductory material accompanying the August 11, 1999 reproposal, particularly with regard to the term "used." See 64 Fed. Reg. at 43790, col. 1.