The Bureau of National Affairs recently reported (“Drive Under Way to Enact Legislation On Data Quality, Access at State Level” February 12, 2003) that the Center for Regulatory Effectiveness (CRE), a conservative clearinghouse that focuses on data quality and data access issues, has drafted and is making efforts to promote a state version of the federal Data Quality Act along with a state Data Access Bill. Apparently CRE has submitted the two model bills to the American Legislative Exchange Council (ALEC), a conservative policy group that advocates specific legislation at the state level. Currently neither bill is listed on the ALEC website among the model legislation the organization currently champions. Both pieces of legislation could have profound implications for the future of public access to government information at the state and local level as well as how state and local agencies can process and act on information. Data Quality The model state data quality bill is clearly derived directly from the federal Data Quality Act and the Office of Management and Budget (OMB) guidelines instructing implementation of the Act. Similar to its federal counterpart, the state model language requires agencies to develop guidelines in order to maximize the quality, objectivity, utility, and integrity of information. Also mirroring the federal data quality guidelines, the state data quality proposal orders state agencies to establish administrative mechanisms that allow affected parties to request corrections in information. Even though the model state data quality bill has several similarities to the federal legislation, it is important to note that the state version is much more detailed then the federal legislation. In several important areas, the state model bill extends further than the original federal law. The federal Data Quality Act actually only amounts to a 15-line rider attached to an appropriations bill with generic and vague language. However, the state model data quality bill is four pages long with very detailed principles. Clearly, the state version incorporates the OMB data quality guidelines, which created the detailed set of policies and procedures that agencies were to adapt into their own information quality guidelines. The model state data quality bill not only attempts to reinforce the federal law with state versions, but also attempts to codify aspects of the federal regulatory guidelines into state law. This would make the state data quality legislation much stronger and more binding then the federal law. Since the federal Data Quality Act is extremely limited in scope, it initially granted the regulatory process a great deal of flexibility in implementation. Unfortunately, OMB eliminated much of that flexibility with the overreaching and extensive guidelines. Even after the restrictive OMB guidelines were produced, agencies still had some individual flexibility in adapting the information guidelines because they were guidelines and not laws. The longer and more detailed state legislation eliminates much of the flexibility left to state agencies by locking many of the factors into law. The model data quality bill extends the data quality policy to cover a number of areas that the federal version does not include. First, the definition of “dissemination” varies significantly between the federal Act and the state bill. As stated in the state model data quality bill’s Principles, section 5.1, data quality standards apply to all information disseminated by an agency. The federal Data Quality Act specified in its definition of dissemination a number of exemptions including inter- and intra-agency communication, information only used by government employees, press releases, and a number of others from falling under data quality standards. The state definition of dissemination does not define any exemptions. This could mean that agencies would lose much of their ability to share information within and between state agencies. Additionally, the state data quality bill specifically states that its policies cover information disseminated by the state to the Federal government. These extensions in the scope of material and communication covered by the data quality process could greatly hamper agencies’ effectiveness. Since September 11, the fast and efficient sharing of information within the government has been an important topic. It seems extraordinarily shortsighted to undercut those efforts with an overly restrictive state data quality law. Another significant change from the language of the federal Data Quality Act is the state model’s Principle, section 5.5, which requires agencies to immediately stop disseminating any information that is found to be out of compliance with the guidelines or the Act. The agency is also responsible for correcting the information as soon as reasonably possible. Neither the federal Data Quality Act nor the OMB guidelines ever specifically stipulated what actions an agency should take if information is found to not meet the standards. At the federal level agencies are allowed to determine responses to each request for correction individually, including whether to stop dissemination or to correct the information. These examples expose the additional barriers that the model state data quality bill contains which would create further restrictions in how state agencies can use information. Data Access The state model data access bill is developed from the OMB revisions to Circular A-110, as directed by the Shelby Amendment. The Shelby Amendment directed guidance for the administration of federal grants, and required public to access all data and information related to federally funded studies. The state model language also requires that greater access be granted to data and information developed under government funding as well as for information that agencies use to make decisions or regulatory actions. New York passed state legislation on data access in 1999, shortly after the Shelby Amendment was passed, however it is unclear whether any other states have seen this as an important enough issue to follow suit. Similar to the Data Quality Act, the federal data access law, the Shelby Amendment, was an extremely short appropriations rider. The two-line amendment called on OMB to revise Circular A-110 “to require Federal awarding agencies to ensure that all data produced under an award will be made available to the public through the procedures established under the Freedom of Information Act” (FOIA). The model state bill stretches the two sentence federal legislation into two pages that uses much of the OMB language from Circular A-110. Utilizing language OMB developed in the regulatory process of implementing the Shelby Amendment into the state level legislative process would make the state law broader in scope and more specific then the federal law. The Shelby Amendment allowed access only to certain categories of information from grantees under existing FOIA laws. The model state bill eliminates several of the protections that grantees can use to withhold data under the federal policies. Eliminating these protections could compromise intellectual property rights or patient confidentiality at the state level. This change removes the flexibility state grantees have in determining how to protect their work and the privacy of those involved. The state data access bill also contains language much different from the federal Circular that would greatly change how state grantees disclose information. For example, the federal Circular is very clear in distinguishing between published and unpublished data. Only “published” research findings can be subject to information requests, thereby preserving the ability of grantees to withhold data that they had not yet published. The model state bill never makes a distinction between published and unpublished, thereby subjecting unpublished work to information requests and compromising grantees’ claims to their studies. The breadth of the research data that is subject to access is also extended in the state bill in other ways. The original federal policy limits access to information that supports regulations or actions that have the “force and effect of law.” However, the state model bill grants access to studies and their underlying information for any rule, regulation, guideline, or policy that an agency proposes or promulgates. This expansion of data access to information supporting a much broader array of agency actions would incur significant costs with questionable benefits. Agencies would be forced to fulfill more requests gathering information from a huge number of sources for minor policies and initial proposals. A number of exemptions exist in the federal Circular that defines more clearly protections for grantees and those involved in their research. There is very specific language that provides protection from disclosing information that would compromise the confidentiality of persons involved in a study. It also exempts trade secrets and commercial information. The state bill contains a very vague statement regarding privacy with no mention of the federal-level specific exemptions. This could compromise the privacy of individuals and the quality of research. Individuals, as well as institutions such as schools, would be very reluctant to participate in research if confidentiality could not be guaranteed. This would adversely affect grantees’ abilities to research and to collect unbiased, sound information. The model state bill creates a law containing many gaps in which information traditionally and rightly protected by law could be accessed and distributed. The credibility and quality of research could decline, which would threaten agencies’ capacities to create effective and necessary regulations. Conclusion These model state bills are much more detailed then their federal predecessors, and in several important areas, they reach further than the original federal laws. OMB Watch believes that both the model state data access and data quality bills would inhibit state agencies’ abilities to develop regulations and to act on information effectively. OMB Watch will continue to monitor the progress of these model bills.