The U.S. Court of Appeals for the Fourth Circuit on March 6 ruled the Salt Institute, a nonprofit association of salt producers that provides public information on behalf of its members, lacked standing to bring a lawsuit challenging government-disseminated misinformation about alleged health risks of salt.
Because it is difficult to imagine a plaintiff who would suffer greater harm from erroneous data about the adverse health effects of salt than the Salt Institute itself, the decision raises grave questions about the public accountability of government agencies.
Congress Sought Clarity
The federal government collects, stores, and disseminates vast amounts of information every day, and the American public relies on that information in making myriad decisions, from what foods to eat to which products to buy. The lawsuit sought to clarify what happens when the federal government disseminates information that is incorrect and what recourse an individual or company has to correct faulty information.
Historically, the answer to those questions was “nothing happens” and “no recourse”–but that answer changed when Congress enacted the Information Quality Act of 2001 (IQA). The IQA had a simple purpose: To ensure the quality of information disseminated by the federal government.
Specifically, the IQA directed the Office of Management and Budget (OMB) to have each federal agency publish guidelines detailing how the agency would ensure and maximize the quality, objectivity, utility, and integrity of disseminated information. It also established an administrative system whereby interested parties could seek correction of disseminated information that was erroneous.
Agencies Oversaw Own Data
The IQA was designed to promote integrity in the agency decision-making process and to increase the accuracy of the data underlying government regulatory decisions. It was to be a tool for everyone, from industrialists to environmentalists, and to provide equal opportunity to correct faulty government data and promote confidence in government decision-making.
Although the IQA is intended as a tool for everyone, federal agencies have asserted that determinations about the quality of data used by an agency are solely within the discretion of the agency. In other words, the agencies are to be the final arbiters about whether the information they disseminated is correct.
That position was put to the test in 2003.
That year, the United States Department of Health & Human Services (HHS) posted on its Web site erroneous information regarding the health effects of salt. After an unsuccessful attempt to have HHS correct the information through the IQA’s administrative process, the Salt Institute and U.S. Chamber of Commerce filed suit against the agency in March 2004 in federal district court. Specifically, the chamber sought the release of the data HHS relied upon in determining that salt causes adverse health effects.
The district court ruled against the chamber in November 2004, concluding that, as a procedural matter, the plaintiff lacked standing to bring the lawsuit. It further concluded the IQA did not provide for a private cause of action, nor did the government’s refusal to turn over the information constitute final agency action that would be judicially reviewable under the Administrative Procedure Act (APA). The chamber subsequently appealed the district court’s ruling to the Fourth Circuit Court of Appeals.
The Fourth Circuit Court’s March 6 ruling agreed with the lower court that the plaintiffs lacked standing to bring the lawsuit. The court’s decision is final.
Law’s Purpose Negated
The Fourth Circuit’s ruling cripples the IQA by allowing federal agencies to serve as final judge of the quality and accuracy of the data they themselves disseminate. Third parties that rely on or are affected by agency data will have no recourse to challenge data that are inaccurate.
While the administrative process established under the IQA will remain in place, the agency–in a classic example of the fox guarding the henhouse–will continue to serve as the final arbiter of whether its information is correct.
The salt ruling is a clear defeat for anyone who relies on or utilizes federally disseminated data or who is affected by those who do.
In the wake of the Fourth Circuit’s ruling, there are only two avenues of possible recourse to address the problem. First, Congress could amend the IQA to make disseminations of agency data judicially reviewable. In that way, the public could be assured that challenges to agency data would be objectively evaluated for accuracy by the courts. Alternatively, OMB could create an ombudsman position to hear IQA appeals. That would ensure an objective review of questions about the accuracy of government-disseminated information.
William L. Kovacs ([email protected]) is vice president of the U.S. Chamber of Commerce Environment, Technology, & Regulatory Affairs Division.