September 29, 1995
M-95-22
MEMORANDUM FOR HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES
| FROM: |
Alice M. Rivlin
Director |
| | |
| SUBJECT: |
Implementing the Information Dissemination Provisions of the Paperwork
Reduction Act of 1995 |
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.
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