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.
Attachment
September
29, 1995
MEMORANDUM FOR
AGENCY SENIOR INFORMATION RESOURCES
MANAGEMENT OFFICIALS
| FROM: |
Sally
Katzen |
| |
|
| SUBJECT: |
Implementing
the Information Dissemination Provisions
of the Paperwork Reduction Act of 1995 |
Introduction
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.[1]
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.
Restrictive practices
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.
International
relationships
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.
Conclusion
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.
[1]
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.