A Disciplined Regulatory Initiative: Announcing that the Data Quality Act is Judicially Reviewable, by Jim Tozzi

by Chris Walker — Tuesday, Nov. 15, 2016@chris_j_walker

The Data Quality Act (DQA), aka as the Information Quality Act, allows members of the public to file citizen petitions to obtain corrections of inaccurate information disseminated by federal agencies. Consequently the DQA provides a means for the public to obtain corrections in press releases, reports and regulations issued by federal agencies. In essence the DQA merely requires that federal agencies tell the truth.

Notwithstanding analyses and a judicial decision to the contrary, the Department of Justice (DOJ) has informed the courts, in both Democratic and Republican Administrations, that if a federal agency refuses to make a correction sought by a member of the public that the denial is not reviewable by the courts. The aforementioned action by DOJ has had a chilling impact on the Act because federal agencies know that unless there is an intervention by OMB they can ignore citizen petitions to correct inaccurate information disseminated by a federal agency.

As the Trump Administration develops its regulatory initiative nothing is as easy as changing the position of the Executive Branch on the justiciability of the Act. By a simple stroke of the pen the incoming Administration could empower all US citizens with the right to become involved in the regulatory process by serving as regulatory watchdogs. This objective would be accomplished by having OIRA send an announcement to all federal agencies that heretofore the Administration will support judicial review of the DQA but reserves the right to oppose the adoption of a particular proposed Request for Correction that it deems to be inconsistent with the Act. Increasing the accessibility of the Data Quality Act is a disciplined regulatory initiative because agency decisions will be buttressed by Chevron and Auer defense arguments.

Simply declaring that the view of the Administration is that actions taken pursuant to the Data Quality Act are judicially reviewable can be accomplished without passing a law, without passing a regulation or even without signing an Executive order but instead simply making an announcement to the agencies. It does not get any simpler than that and could constitute a litmus test with regard to the strength of future actions to control the growth of the regulatory state.

In addition the aforementioned action would also reduce the need for a number of the regulatory proposals presently before the Congress, a twofer—in particular legislation requiring that the regulations issued by independent agencies be subjected to OMB review. This bridge was crossed in part when existing legislation, the Paperwork Reduction Act, gave OMB jurisdiction over the information requirements contained in the rules issued by independent agencies.

Making the Data Quality Act judicially reviewable would complete the job because the substantive portions of a regulation issued by an independent agency would now be subject to OMB review as is the case with regulations issued by Executive Branch agencies. In addition such an action would unleash the heretofore untapped resources of the general public to serve as regulatory watchdogs.

Jim Tozzi served as a regulatory official in five presidential administrations starting with Lyndon Johnson and ending with Ronald Reagan. He is presently the head of the Center for Regulatory Effectiveness.

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About Chris Walker

Christopher Walker is a law professor at The Ohio State University Moritz College of Law. Prior to joining the law faculty, Professor Walker clerked for Justice Anthony Kennedy of the U.S. Supreme Court and worked on the Civil Appellate Staff at the U.S. Department of Justice. His publications have appeared in the Michigan Law Review, Minnesota Law Review, Stanford Law Review, and University of Pennsylvania Law Review, among others. Outside the law school, he serves as one of forty Public Members of the Administrative Conference of the United States and on the Governing Council for the American Bar Association’s Section on Administrative Law and Regulatory Practice. He blogs regularly at the Yale Journal on Regulation.

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