MEMORANDUM FOR HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES
The Paperwork Reduction Act of 1995 (PRA), P.L. 104-13, which amends 44 U.S.C. Chapter 35 and becomes effective October 1, 1995, sets forth policies governing Federal agency dissemination of public information. Section 3506(d) of the PRA codifies the information policy provisions of OMB Circular No. A-130.
The attached Memorandum from the Administrator of the Office of Information and Regulatory Affairs reviews some of the major information policy provisions of the PRA and provides guidance as to their implementation. Agencies should consider this guidance as they review their information dissemination practices for compliance with the PRA and Circular A-130.
September 29, 1995
AGENCY SENIOR INFORMATION RESOURCES
During the past three years, Federal agencies have dramatically increased the quality and quantity of government information available to the public in paper and electronic form. These efforts can have a real and positive effect on the public's perception of government, if they reflect the public's interest and are undertaken in a manner consistent with law and policy.
The Paperwork Reduction Act of 1995 (PRA), P.L. 104-13, which amends 44 U.S.C. Chapter 35 and becomes effective October 1, 1995, sets forth policies governing Federal agency dissemination of public information. Section 3506(d) codifies the information dissemination provisions contained in OMB Circular No. A-130. 58 F.R. 36070 (July 2, 1993), reprinted at 59 F.R. 37906 (July 25, 1994). Circular A-130 articulates the policies, principles, standards, and guidelines which apply to Federal agency dissemination of public information, regardless of the form and format in which such information is disseminated.
Section 9.a(11) of Circular A-130 provides that the head of each agency shall direct the senior official appointed pursuant to the PRA to monitor agency compliance with the Circular. Among other things, the senior official, acting as an ombudsman, is to consider alleged instances of agency failure to comply with the Circular and recommend or take corrective action as appropriate.
This memorandum is intended to assist agencies in reviewing their information dissemination practices for compliance with the PRA and Circular A-130. Particular attention is focused on several areas where questions of applicable policy have been raised. Except for the discussion of international relationships (which is new), this memorandum highlights explanatory material contained at Appendix IV of the Circular.
Agency responsibilities for dissemination
Section 3506(d) of the PRA makes agencies responsible for carrying out sound information dissemination practices consistent with the principles enunciated in the Act and any guidance issued by the Director pursuant to Section 3504(d). One of the major goals of the Act is to encourage a diversity of sources for information based on government public information. It recognizes that State and local governmental entities, the information industry, libraries and educational institutions, and other entities are partners in promoting the use of government information for the maximum benefit of society. Two areas where questions have been raised involve the need for agencies to communicate with the public regarding their dissemination plans and the use of intermediaries to help accomplish their dissemination goals.
First, agencies' responsibilities for dissemination include an active knowledge of, and regular consultation with, the users of their information dissemination products. A primary reason for communication with users is to gain their contribution to improving the quality and relevance of government information -- how it is created, collected, and disseminated. A key part of communicating with the public is providing adequate notice of agency information dissemination plans.
The decision to initiate, terminate, or substantially modify the content, form, frequency, or availability of significant products should trigger appropriate advance public notice and consideration of public comments. Where users of an agency information dissemination product may be seriously affected by the introduction of a change in medium or format, or where members of the public indicate that an existing agency product is important and necessary to them, the agency should consider these views before instituting significant change or deciding to terminate the product. Because agencies' information dissemination actions often affect other agencies as well as the public, agencies should also forewarn and consider the views of other agencies about significant actions. Determination of what is a significant information dissemination product, and what constitutes adequate notice, are matters for each agency to determine, using its informed judgment. In all cases, agencies should clearly communicate their decisions to the interested public.
Second, in some circumstances, agencies may legitimately wish to use the services of private contractors or other governmental entities to assist in fulfilling their dissemination responsibilities. For example, the Commerce Department's National Technical Information Service assists many agencies in making available on-line access to agency data through the FedWorld system, as does the Economics and Statistics Administration's STAT-USA system. Similarly, the Government Printing Office has been assisting agencies in developing and marketing compact disk-read only memory (cd-rom) products containing agency regulatory and other information intended for wide distribution, including through the depository libraries.
As Appendix IV of Circular A-130 states, when an agency uses an intermediary to assist with information dissemination, it should take care not to impose, or permit the intermediary to impose, restrictions that interfere with the agency's discharge of its information dissemination responsibilities. Any contractual terms should assure that, with respect to dissemination, the contractor behaves as though the contractor were the agency.
In all cases, agencies are ultimately responsible for their dissemination practices, and should monitor the activities of their intermediaries as necessary to determine compliance with the PRA and Circular A-130. If the relationship is structured in a manner intended to ensure compliance with the PRA and Circular A-130, such oversight should be relatively straightforward.
Agencies should also consider other statutory responsibilities, such as those under the Freedom of Information Act, when developing their information dissemination strategies. For example, when an agency determines that certain information is subject to repeated Freedom of Information Act requests, affirmatively making that information available, either directly or through an intermediary at the cost of dissemination, will likely substantially reduce the FOIA burden on the agency.
Cost of dissemination
Section 3506(d)(4)(D) of the PRA, and Section 8.a(7)(c) of Circular A-130, set the basic standard that agencies shall not charge user fees for government information which exceed the cost of dissemination. The cost of dissemination does not include the cost of initially collecting and processing the information.
Circular A-130 does not prescribe a specific formula for pricing government information dissemination products. However, as Appendix IV of the Circular explains, the cost of dissemination may generally be thought of as the sum of all costs specifically associated with preparing a product for dissemination and actually disseminating it to the public. When an agency prepares information for its own internal use, the associated costs would not generally be recoverable as user charges on subsequent dissemination. When the agency then prepares the information for public dissemination, the costs associated with that preparation and the costs associated with the actual dissemination are recoverable as user charges. This may include a reasonable fee for a contractor's services as an intermediary in the dissemination process.
In the case of government databases which are made available to the public on-line, the costs associated with initial database development, including the costs of the necessary hardware and software, would not be included in the cost of dissemination. Once a decision is made to disseminate the data, additional costs logically associated with dissemination can be included in the user fee. These may include costs associated with modification of the database to make it suitable for dissemination, any hardware or software enhancements necessary for dissemination, and costs associated with providing customer service or telecommunications capacity.
In the case of information disseminated via cd-rom, the costs associated with initial database development would likewise not be included in the cost of dissemination. However, a portion of the costs associated with formatting the data for cd-rom dissemination and the costs of mastering the cd-rom, could logically be included as part of the dissemination cost, as would the cost associated with licensing appropriate search software.
Determining the appropriate user fee is the responsibility of each agency, and involves the exercise of judgment and reliance on reasonable estimates. Agencies should be able to explain how they arrive at user fees which represent average prices and which, given the likely demand for the product, can be expected to recover the costs associated with dissemination.
Section 3506(d) of the PRA stresses agency responsibility to ensure that the public has timely and equitable access to the agency's public information. It generally prohibits agencies from establishing exclusive, restricted, or other distribution arrangements that interfere with timely and equitable availability of public information to the public. Likewise, agencies may not themselves restrict or regulate the public's user, resale, or redissemination of public information.
For example, as Appendix IV of the Circular states, an agency practice of selling on-line access to a database but refusing to sell copies of the database itself may be inequitable and improperly restrictive because it may preclude others from making the same service available to the public at a lower price. Section 3506(d)(1) of the PRA provides that if an agency is willing to provide public information maintained in electronic formats, the agency should be willing to provide timely and equitable access to the underlying data (in whole or in part).
By the same reasoning, agencies should behave in an even-handed manner in handling information dissemination products. If an agency is willing to sell a database or database services to some members of the public, the agency should sell the same products under similar terms to other members of the public. If an agency decides it has public policy reasons for offering different terms of sale to different groups in the public, the agency should be able to provide a clear statement of the policy and its basis.
Agencies should not attempt to exert control over the secondary uses of their information dissemination products. Concerns over data integrity have led to some confusion regarding the use of practices which may be considered restrictive. Agencies should always inform the public as to any limitations inherent in the information dissemination product (e.g., possibility of errors, degree of reliability, and validity) so that users are fully aware of the quality and integrity of the information. In such cases, explicit warnings regarding the information would not be considered restrictive since they may be necessary to warn the public against possible misuse.
Appendix IV provides that, if circumstances warrant, an agency may establish a procedure by which private disseminators of the agency's information may have the data and/or value-added processing checked for accuracy and certified by the agency. Using this method, such disseminators of the data would be able to respond to the demand for integrity from purchasers and users. This approach could be enhanced by the agency's using its authority to trademark its information dissemination products, and requiring that redisseminators who wish to use the trademark agree to appropriate integrity procedures. These methods have the promise of promoting diversity, user responsiveness, and efficiency as well as integrity. However, an agency's responsibility to protect against misuse of a government information dissemination product does not extend to restricting or regulating how the public actually uses the information.
The Lanham Trademark Act of 1946, 15 U.S.C. 1055, 1124, 1127, provides an efficient method to address legitimate agency concerns regarding public safety. Specifically, the Act permits a trademark owner to license the mark, and to demand that the user maintain appropriate quality controls over products reaching consumers under the mark. See generally, McCarthy on Trademarks, Sec. 18.13. When a trademark owner licenses the trademark to another, it may retain the right to control the quality of goods sold under the trademark by the licensee. Furthermore, if a licensee sells goods under the licensed trademark in breach of the licensor's quality specifications, the licensee may be liable for breach of contract as well as for trademark infringement. This technique is increasingly being used to assure the integrity of digital information dissemination products. For example, the Census Bureau has trademarked its topologically integrated geographic encoding and referencing data product ("TIGER/Line"), which is used as official source data for legislative districting and other sensitive applications.
Whenever a need for special quality control procedures is identified, agencies should adopt the least burdensome methods and ensure that the methods chosen do not establish an exclusive, restricted, or other distribution arrangement that interferes with timely and equitable availability of public information to the public. Agencies should not attempt to condition the resale or redissemination of their information dissemination products by members of the public, other than to require that any trademark conditions be passed down to subsequent users.
The information policies contained in the PRA and Circular A-130 are based on the premise that government information is a valuable national resource, and that the economic benefits to society are maximized when government information is available in a timely and equitable manner to all. Maximizing the benefits of government information to society depends, in turn, on fostering diversity among the entities involved in disseminating it. These include for-profit and not-for-profit entities, such as information vendors and libraries, as well as State, local and tribal governments. The policies on charging the cost of dissemination and against restrictive practices contained in the PRA and Circular A-130 are aimed at achieving this goal.
Other nations do not necessarily share these values. Although an increasing number are embracing the concept of equitable and unrestricted access to public information -- particularly scientific, environmental, and geographic information of great public benefit -- other nations are treating their information as a commodity to be "commercialized". Whereas the Copyright Act, 17 U.S.C. 105, has long provided that "[c]opyright protection under this title is not available for any work of the United States Government," some other nations take advantage of their domestic copyright laws that do permit government copyright and assert a monopoly on certain categories of information in order to maximize revenues. Such arrangements tend to preclude other entities from developing markets for the information or otherwise disseminating the information in the public interest.
Thus, Federal agencies involved in international data exchanges are sometimes faced with problems in disseminating data stemming from differing national treatment of government copyright. For example, one country may attempt to condition the sharing of data with a Federal agency on an agreement that the agency will withhold release of the information or otherwise restrict its availability to the public. Since the Freedom of Information Act does not provide a categorical exemption for copyrighted information, and Federal agencies have neither the authority nor capability to enforce restrictions on behalf of other nations, agencies faced with such restrictive conditions lack clear guidance as to how to respond.
The results of the July 1995 Congress of the World Meteorological Organization, which sought to strike a balance of interests in this area, are instructive. Faced with a resolution which would have essentially required member nations to enforce restrictions on certain categories of information for the commercial benefit of other nations, the United States proposed a compromise which was ultimately accepted. The compromise explicitly affirmed the general principle that government meteorological information -- like all other scientific, technical and environmental information -- should be shared globally without restriction; but recognized that individual nations may in particular cases apply their own domestic copyright and similar laws to prevent what they deem to be unfair or inappropriate competition within their own territories. This compromise leaves open the door for further consultation as to whether the future of government information policy in a global information infrastructure should follow the "open and unrestricted access" model embraced by the United States and a number of other nations, or if it should follow the "government commercialization" model of others.
Accordingly, since the PRA and Circular A-130 are silent as to how agencies should respond to similar situations, we are providing the following suggestions. They are intended to foster globally the open and unrestricted information policy embraced by the United States and like minded nations, while permitting agencies to have access to data provided by foreign governments with restrictive conditions.
Release by a Federal agency of copyrighted information whether under a FOIA request or otherwise, does not affect any rights the copyright holder might otherwise possess. Accordingly, agencies should inform any concerned foreign governments that their copyright claims may be enforceable under United States law, but that the agency is not authorized to prosecute any such claim on behalf of the foreign government.
Whenever an agency seeks to negotiate an international agreement in which a foreign party seeks to impose restrictive practices on information to be exchanged, the agency should first coordinate with the State Department. The State Department will work with the agency to develop the least restrictive terms consistent with United States policy, and ensure that those terms receive full interagency clearance through the established process for granting agencies authority to negotiate and conclude international agreements.
Finally, whenever an agency is attending meetings of international or multilateral organizations where restrictive practices are being proposed as binding on member states, the agency should coordinate with the State Department, the Office of Management and Budget, the Office of Science and Technology Policy, or the U.S. Trade Representative, as appropriate, before expressing a position on behalf of the United States.
The PRA and Circular A-130 seek to articulate information policies of maximum benefit to the nation as a whole. Federal agencies should not consider compliance with the PRA and Circular A-130 to be a burden, but rather an opportunity to further their ultimate mission of creating a government that works better and costs less.
 Section 8.a(7)(c)(ii) recognizes that there may be limited circumstances where the agency collects, processes, and disseminates the information for the benefit of a specific identifiable group beyond the benefit to the general public. In such cases, the agency may permissibly charge in excess of the cost of dissemination.