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Paperwork Reduction Act (Reauthorized)
The bill that was introduced in the House earlier this year, as part of the Contract With America and as a separate bill, was a veritable grab bag of anti-regulatory, anti-government ideas (with one attempt at a truly egregious giveaway of public ownership of public information to segments of the information industry -- an attempt that was soundly defeated in committee due to the action of the public interest community). The good news is that some of the worst provisions of the House bill were modified or eliminated in the final bill that was conferenced with the Senate and some of the best provisions were preserved.
The Good News
A very important new provision refers to agency responsibilities with respect to information dissemination. Agencies have responsibility to "ensure that the public has timely and equitable access to the agency's public information" and the law spells out some of the mechanisms for ensuring that access. The law now requires any agency that "provides public information maintained in electronic format" to provide "timely and equitable access to the underlying data (in whole or in part)." This language is important because it preserves the public's ownership in at least the raw information (without such value-added amenities as, for instance, indexing) and it should mean that, even when an agency makes data accessible through proprietary software, a nonprofit or anyone else should be able to get the underlying data and make it available (or just make use of it). In addition, to ensure meaningful public access, the law now requires that an agency "provide adequate notice when initiating, substantially modifying, or terminating significant information dissemination products."
The Bad News
The law also contains some provisions that are very bad. For example, it goes against the Supreme Court decision in Dole v. Steelworkers. In this case, the Court ruled that OMB had no authority to review third-part disclosure rules (such as requirements that Materials Safety Data Sheets be posted at worksites) under the PRA. The new PRA amends the definition of "collection of information" to include "causing to be obtained" and "requiring the disclosure to third parties or the public," thus bringing these collections under OMB's purview.
Overall, the bill tilts heavily in the direction of reducing burdens without respect to the benefit derived. Business interests heavily influenced the bill.
The other new provision that is likely to cause harm deals with the so-called "public protection" clause. The law previously stated that a person shall not be subject to penalty for failing to comply with a collection of information if the collection did not display a valid control number assigned by the director of OIRA (Office of Information and Regulatory Affairs) or the agency failed to inform the person that s/he was not required to respond unless the collection displays a valid control number. The Senate version had remained unchanged because, according to staffers, last year court decisions had affirmed the section's effectiveness in empowering the public to defend themselves against unapproved paperwork.
New language was passed by the House, however, and was included in the final bill. This language states that, "The protection provided by this section may be raised in the form of a complete defense, bar, or otherwise at any time during the agency administrative process or judicial action applicable thereto."
The History
During the Bush administration the Paperwork Reduction Act was characterized by criticism of OMB's Office on Information and Regulatory Affairs (OIRA) for using its paperwork review authority to exert substantive control over agency actions. Congressional reports have found that by changing, delaying, or disapproving paperwork, OIRA sought to undermine a host of statutes, in areas ranging from worker safety to public health and environmental protection. As Sen. John Glenn (D-OH) noted, "OIRA's paperwork reduction work has taken place in the context of the regulatory review authority given to OIRA by presidential executive orders. This responsibility, important as it is, added a political element that created most of the controversy that has dogged OIRA since 1981."
But when, on May 28, 1993, the Senate approved the nomination of Sally Katzen for the top job at OIRA, there grew hope that OIRA's past abuses would be curtailed. Katzen met with a coalition of organizations led by OMB Watch and made up of representatives from labor, environment, and public interest concerns to listen to suggestions on how the regulatory review process should be reformed. During the meetings, Katzen demonstrated a quick grasp of the issues and was able to understand the group's points. Finally, someone who would listen.
Then came the Contract with America, which proposed a reauthorization of the PRA that was a very beneficial to business interests. The bill that was signed into law May 22, 1995, was vastly different from the Contract with America plan, but contained some problematic provisions. For example, the PRA overturned a 1990 Supreme Court decision that kept OMB from reviewing cerain types of paperwork. On the other hand, the PRA adds new provisions that emphasize the responsibility of agencies to disseminate information to the public and to make better use of newer information technologies.