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®: CRE Regulatory Action of the Week

OMB Issues Memorandum on Paperwork Reduction Act Applicability
The U.S. Office of Management and Budget's Office of Information and Regulatory Affairs has issued a Memorandum on Social Media, Web-Based Interactive technologies, and the Paperwork Reduction Act, available online.

OIRA's memorandum, which is dated April 7, 2010, is part of OMB's implementation of President Obama's January 21, 2010 memorandum calling for the establishment of "a system of transparency, public participation, and collaboration" among the U.S. executive departments and agencies.

Specifically, OIRA's April 7th memorandum states that it "review[s] existing OMB policies, such as Paperwork Reduction Act guidance and privacy guidance, to identify impediments to open government and to the use of new technologies and, where necessary, issue clarifying guidance and/or propose revisions to such policies, to promote greater openness in government."

OIRA's April 7th memorandum further states that "it clarifies when and how the paperwork reduction Act of 1995 (the PRA) applies to federal agency use of social media and web-based interactive technologies." It explains that under established principles, the PRA does not apply to many uses of such media and technologies.

The PRA generally requires federal agencies to obtain OMB/OIRA approval before the agencies collect information from the public. OIRA explains in another memorandum issued April 7, 2010, that during its PRA review,

    "OIRA evaluates whether the collection of information by the agency:

  • is necessary for the proper performance of the functions of the agency, including whether the information has practical utility;


  • minimizes the Federal information collection burden, with particular emphasis on those individuals and entities most adversely affected; and


  • maximizes the practical utility of and public benefit from information collected by or for the Federal Government.
    • OIRA also reviews the extent to which the information collection is consistent with applicable laws, regulations, and policies related to privacy, confidentiality, security, information quality, and statistical standards. In addition, OMB coordinates efforts across Federal agencies in shared areas of interest and expertise."
OMB/OIRA Memorandum on Information Collection under the Paperwork Reduction Act, available online.

OIRA's April 7th memorandum on Social Media identifies several categories of agency actions that are exempt from this requirement. OIRA's discussion of these exemptions is more complex and detailed than the brief summary provided below. Consequently, the reader should review OIRA's April 7th memorandum carefully. The PRA exemptions identified in the April 7th Memorandum are:

  • General Solicitations. 5 C.F.R. 1320.3(h)(4) excludes "facts or opinions submitted in response to general solicitations of comments from the public, published in the Federal Register or other publications, regardless of the form or format thereof, provided that no person is required to supply specific information pertaining to the commenter, other than that necessary for self-identification, as a condition of the agency's full consideration of the comment."


  • Public Meetings. 5 C.F.R. 1320.3(h)(8) excludes certain "facts or opinions obtained or solicited at or in connection with public hearings or meetings."


  • General Solicitations. Under the general solicitations exclusion, the PRA does not apply to notices published in the Federal Register or other publications that request public comments on proposed regulations, or any general requests for comments "regardless of the form or format thereof."


  • Feedback requests. Under existing OMB policy, agency uses of general or undifferentiated "suggestion boxes" are not covered by the PRA.


  • Electronic subscriptions to agency notifications or publications. OMB does not consider mailing addresses collected for agency mailing lists to be information subject to the PRA. Similarly, an agency is not collecting information when it collects email addresses for agency updates, alerts, publications, or email subscription services; mobile phone numbers for text notification lists; or addresses for RSS feeds, which allow individuals to customize and subscribe to updates from websites


  • Public Meetings. Under current OMB policy, agencies do not trigger the PRA's requirements by hosting a public meeting. For purposes of the PRA, OMB considers interactive meeting tools-including but not limited to public conference calls, webinars, blogs, discussion boards, forums, message boards, chat sessions, social networks, and online communities-to be equivalent to in-person public meetings.


  • Wikis and collaborative drafting platforms. Wikis are an example of a web-based collaboration tool that generally does not trigger the PRA because they merely facilitate interactions between the agencies and the public. However, some uses of wiki technologies are covered by the PRA, such as using a wiki to collect information that an agency would otherwise gather by asking for responses to identical questions (e.g., posting a spreadsheet into which respondents are directed to enter compliance data).


  • Like Items. 5 C.F.R. 1320.3(h)(10) reserves general authority for OMB to identify other "like items" that are not "information." Under its general "like items" authority, OMB does not consider responses gathered from the following types of questions or solicitations to be "information" subject to the PRA:


    • --Items collected to create user accounts or profiles for agency websites. Agencies are free to offer website users the option of creating user accounts or profiles. When doing so, agencies may request an email address, username, password, and geographic location (e.g., State, region, or ZIP code) for account registration. The collection of such self-identifying information is not subject to the PRA.

    --Items collected to allow users to customize or influence the appearance of an agency website. When agencies permit website users to customize or influence the appearance of an agency website, the items collected to permit this customization are generally not subject to the PRA.

    --Ratings and rankings. Ratings and rankings of postings or comments by website users are not considered "information" under the PRA. More broadly, "information" does not include functions common to social media tools that allow the public to rate, rank, vote on, flag, tag, label, or similarly assess the value of ideas, solutions, suggestions, questions, and comments posted by website users. Moreover, agency use and dissemination of the information produced by rankings, ratings, and tagging must comply with applicable Information Quality Act guidelines.

    --Items necessary to complete a voluntary commercial transaction. If an agency collects information that is necessary for the selection, payment, or delivery of an item, or to identify the person ordering an item, such information is not subject to the PRA if used solely for the purpose of completing a commercial transaction.

    --Contests. An agency might ask the general public for ideas for improving current practices under a statute that it administers, for potential solutions to a scientific, technological, social, or other problem, or for innovations (e.g., video and software applications) that might advance an agency's mission. These general requests do not become subject to the PRA merely because they take the form of a contest, or because the agency announces that it will give a prize to the best submissions.