Greenwire
Wednesday, March 8, 2006
A federal court ruling this week barring judicial review of agencies' handling of Information Quality Act requests could push the issue back to Congress, regulatory experts said yesterday.
The law, which is also known as the Data Quality Act, requires agencies to ensure the integrity of the information they use and distribute. The law allows outside parties to petition to force the correction of information they believe is wrong.
But since Congress passed the law as part of a fiscal year 2001 appropriations bill, industry groups and environmentalists have tussled over whether the law provides a mechanism for courts to handle disputes and appeals of data quality petitions.
In a hearing last summer, the House Regulatory Affairs Subcommittee considered amending the law to explicitly allow judicial review. But the panel chairwoman, Rep. Candice Miller (R-Mich.), decided to shelve the effort until a judge ruled on an appeal brought by industry groups over data used by the Health and Human Services Department in a major study of sodium intake and hypertension.
The ruling came Monday. Judge Gerald Bruce Lee of U.S. District Court for the Eastern District of Virginia dismissed the suit brought by the Salt Institute and the U.S. Chamber of Commerce. The groups had challenged HHS's denial of a petition to release data gathered for the "Dietary Approaches to Stop Hypertension" study (Greenwire, March 7).
The law, Lee wrote, "does not create a legal right to access to information or to correctness" but merely directs the Office of Management and Budget to draft guidelines governing data quality.
"The impact is pretty clear," said Bill Kovacs, vice president of environment, technology and regulatory affairs at the Chamber of Commerce. "The court says no one -- not a trade association or one of its members, or a person who is harmed -- no one has the standing to enforce the Data Quality Act."
Kovacs predicted that supporters of the act and of judicial review would likely reopen discussions with Miller's committee and others in Congress as they explore their options. "The remedies are fairly simple," he said. "Either you get Congress to give you a right to sue, judicial review, or OMB could get some courage and actually require the agencies to set up some kind of ombudsmen process or review process."
Opponents of the law agreed that lawmakers were likely to revisit the issue.
"My concern at this point is that Candice Miller made a statement after the hearing last summer, saying something to the effect that they were going to monitor this case," said Sean Moulton, director of federal information policy for the advocacy group OMB Watch. "They might look into taking action to use some legislative process to more firmly establish that this is reviewable by courts."
"The real thing we will be vigilant about is another rider," said Rena Steinzor, a lawyer with the Center for Progressive Reform, referring to the passage of the original law as a rider to an appropriations bill. "If there is another rider, we're going to alert the Judiciary committees and the Government Affairs committees in Congress."
Allowing judicial review of data quality petitions likely would result in "a major, major change in the litigation load for the government" -- something that lawmakers should take into strong consideration, she said.
Experts differed on the usefulness of bringing further test cases to establish a legal precedent in favor of judicial review, with some criticizing the quality of the Salt Institute challenge.
Moulton said plaintiffs in the case were unable to demonstrate legal standing because "it's almost impossible to differentiate the statements made in this case by [the HHS hypertension study] versus the many other statements made about sodium and reducing sodium in your diet."
A stronger challenge would come in a case where there was a clearer connection between such statements and some sort of result, Moulton said.
Still, the outcome of any data quality-related suit "is so dependent on the court, the judge, the case, that it's impossible to predict whether or not they could get a decision that the court could rule on it, could overturn some agency decision," he said. "There isn't much here for the courts to really grab on to."
Jim Tozzi of the Center for Regulatory Effectiveness, a former OMB official, agreed that the Salt Institute lawsuit was "not a good test case on reviewability."
His organization is considering two Data Quality Act petitions as possible test cases for the judicial review issue, he said. Both petitions are now under consideration at federal agencies. While CRE would have to wait until the agencies issued their verdicts, Tozzi said CRE anticipated filing its legal challenges by the end of the year.
"I have no doubt in my mind that the act is judicially reviewable," he added. "I think it's premature to take any legislative action until we've tested the case in another circuit."
But according to Steinzor, further legal challenges to establish judicial review are unlikely to succeed. "The district court's interpretation is very unequivocal," she said. "It doesn't have to do with the Salt Institute selling salt. It says there is no legal right to correctness of information written into the Data Quality Act, period, the end. The court gives no indication it's even interested in the details of the Salt Institute's interests in this case."
In the meantime, until Congress takes actions or Data Quality Act supporters launch another test case, the recent court ruling could embolden federal agencies to deny petitions under the statute.
"I think [the decision] will give them a perceptibly stiffer backbone," Steinzor said -- an assessment echoed by Kovacs.
"I would expect that at this point in time that the agencies would open the letter mill and just deny whatever they're going to deny, to just get it over with," Kovacs said.
Among the agencies most affected by the court decision are U.S. EPA, the National Institutes of Health and the Transportation Department, Moulton said.
"Their program people might be breathing a sigh of relief because the case for their information or their decisions to use or disseminate information is theirs to make, as it should be," Moulton said. "Courts should get involved when there's an agency action that is unreasonable, if it's arbitrary or unsubstantiated."
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