A great deal of attention has recently been paid to the dissemination of misinformation, especially by private actors. But what happens when the federal government is the one disseminating the misleading or inaccurate information?
This is far from a new concern. In fact, Congress has long understood the problems of federally disseminated misinformation. In 2000, Congress passed the Information Quality Act (IQA), a law that is supposed to ensure that federal agencies disseminate accurate and credible information. To help accomplish this objective, Congress empowered the public to serve as a check on agencies by allowing people to seek and obtain a correction of disseminated information. Regrettably, as applied in practice and due to court opinions, the IQA has not worked as intended, largely because there has been no way to effectively ensure that agencies comply with the law.
By taking some simple steps, Congress can significantly promote confidence in government information and the regulations issued by agencies that rely upon this information.
The Importance of Accurate Government-Disseminated Information
The federal government plays a unique and important role in the dissemination of information. When federal agencies disseminate information, from recommendations regarding the pandemic to the impact of air pollution, they are shaping the public’s understanding of issues and forming conventional wisdom. The federal government’s “seal of approval” provides significant credibility to the disseminated information in the eyes of the public. As a result, the federal government disseminating information will likely have far more impact than if private actors disseminated the same information.
More important, though, government-disseminated information, particularly scientific information, commonly shapes regulations that impact almost every facet of life. When costly regulations are imposed on society, this can be controversial enough even when they achieve a beneficial purpose. However, there is no benefit from regulations that were wrongly issued in the first place due to incorrect information. In such situations, only costs result, and by relying on the misinformation, federal agencies have foregone other possible solutions they could have adopted, including choosing not to pursue government intervention in the first place. Once regulations are on the books, they are not easily removed, and thus the costs associated with the flawed regulations, and any future regulations built upon their flawed foundation, will also be difficult to remove.
Brief Overview of the IQA
The IQA requires agencies to (1) ensure and maximize the quality of disseminated information, (2) establish procedures for people to seek and obtain correction of information, and (3) provide reports regarding IQA complaints to the Office of Management and Budget (OMB).
The IQA directed the OMB to develop government-wide guidelines that federal agencies must use to implement the requirements of the law. In 2002, the OMB published the “OMB Guidelines” laying out requirements for federal agencies. A key requirement is that the substance of government-disseminated information be accurate, reliable, and unbiased. In addition, information must also be presented in a manner that is “accurate, clear, complete, and unbiased,” which involves providing information in the proper context and making it possible for the public to evaluate the credibility of information.
In 2004, the OMB issued its “Final Information Quality Bulletin for Peer Review” (“Peer Review Bulletin”), which was intended “to enhance the quality and credibility of the government’s scientific information.” The document created peer-review standards for two types of information: “influential scientific information” and “highly influential scientific assessments.”
If the public believe that disseminated information is flawed or has otherwise not met IQA requirements, then they can submit requests for correction to agencies. The agencies then provide initial responses to these requests. If the parties requesting the corrections are not satisfied, then they can then submit appeals to the agencies.
Key Problems with the Application of the IQA
The IQA has helped to correct some government misinformation, but it is not reaching its potential to address the dissemination of misinformation. The following are just some of the primary problems:
No Judicial Review. To date, courts have not found agency IQA actions to be judicially reviewable. As a result, courts are not serving as a necessary check to ensure agency compliance and the public is discouraged from making requests to correct misinformation.
Lack of Clear Requirements in the OMB Guidelines and Peer Review Bulletin. While the OMB created some requirements for agencies in both the OMB Guidelines and the Peer Review Bulletin, it provided far too much agency discretion. For example, in the OMB Guidelines, agencies are directed to allow people “to seek and obtain, where appropriate, correction of information.” For some courts, this “where appropriate” language has led them to conclude that it is up to the agencies when, and if, to correct misinformation. As a result, these courts have concluded that the law creates no judicially enforceable standard, and therefore the agency actions are not judicially reviewable.
The Peer Review Bulletin contains far too many recommendations and far too few genuine requirements (i.e., requirements that do not give agencies the discretion to determine whether and how to comply). In fact, some of the requirements provide so much discretion to agencies that they are not really requirements at all. For example, the OMB does not require agencies to conduct their own, additional peer review of influential scientific information if the prior peer review, such as by academic journals, has been deemed adequate. However, since the OMB did not provide any clear requirements as to what constitutes adequacy, agencies can subjectively decide when prior peer review has been adequate.
Agency Avoidance of Peer Review. Agencies determine whether information is “influential scientific information,” and agencies or the OMB determine whether information is a “highly influential scientific assessment.” These designations are critical because they trigger the IQA peer-review requirements. By allowing agencies or the OMB to make these discretionary decisions, the Peer Review Bulletin allows its requirements to be easily avoided. In a particularly egregious example, the Environmental Protection Agency (EPA) has still not classified the technical support document used to inform its greenhouse gas endangerment finding as a highly influential scientific assessment. In fact, the EPA has disputed that it is even a scientific assessment. This is despite the fact that, in 2011, the EPA’s own inspector general concluded that the technical support document was a highly influential scientific assessment (and a scientific assessment).
Press Release Exception. The OMB Guidelines stated that information disseminated through press releases was not covered by the law. Some agencies have expanded this to include fact sheets and information often disseminated in conjunction with press releases. Agencies can use this exception to avoid information-quality requirements by simply disseminating information through these publication formats. From the outset, the OMB recognized the problem with this exception, recommending that agencies narrow the exception so that the IQA would cover press releases in many situations.
Commonsense Solutions for Congress
The following are specifically focused on addressing some of the most glaring IQA problems. Congress should:
- Clarify that IQA actions are judicially reviewable through the Administrative Procedure Act. Unless agencies recognize they may have to go to court, the IQA will never properly address government misinformation. This solution is not intended to empower judges to make policy decisions or to second-guess policy decisions. Rather, they would merely focus on whether the information supporting those decisions was accurate, reliable, and unbiased, and presented clearly and completely. Courts would also review whether agencies have met procedural requirements when disseminating information. These requirements should be clear-cut and therefore easy to determine if they have been met.
- Ensure that the OMB Guidelines and Peer Review Bulletin set clear requirements. Both the OMB Guidelines and Peer Review Bulletin should establish clear requirements that do not give agencies discretion in terms of how and whether to comply. This would help agencies with compliance, improve information quality, and make it easier to evaluate agency compliance. The OMB should certainly not turn congressional mandates into suggestions for agencies.
- Create automatic triggers for when peer-review standards must be met. Neither agencies nor the OMB should be able to get around the peer-review requirements for influential scientific information and highly influential scientific assessments. Congress should establish automatic and objective triggers when information must meet peer-review standards. This would include identifying regular and significant agency actions where peer review will always be needed, such as the EPA’s setting of ambient air quality standards. Congress should list these specific situations in statute. In general, Congress should be overinclusive in the use of agency peer review, especially given the importance of influential disseminated information and the many problems that exist with the academic peer-review process.
- Remove the exception for press releases and similar documents. Agencies should not be able to get around information-quality requirements by disseminating information in an exempted publication format. This exception is especially problematic since the public and media likely get most of their government information from press releases and fact sheets. Publication formats should be exempted only if they are communicating non-substantive information, such as meeting notices or announcements that explain the existence of the disseminated information.
Under the Freedom of Information Act (FOIA), the public is empowered to request records containing government information and to go to court if the records are not provided. Similarly, the IQA should be viewed as a related law that allows the public to ensure that government information is accurate and that people have access to courts in the same manner allowed by FOIA.
When the public can provide this genuine check on agencies, federal agencies will finally feel accountable for meeting sound information-quality practices and correcting mistakes, which will invariably be made. Such a system will yield major benefits by preventing the dissemination of misinformation in the first place and correcting misinformation before it becomes conventional wisdom or the foundation for harmful regulations.
Daren Bakst is Senior Research Fellow in Regulatory Policy Studies in the Thomas A. Roe Institute for Economic Policy Studies, of the Institute for Economic Freedom, at The Heritage Foundation.