roundtable: New Federal Law Limits Prices on Government Information
roundtable: New Federal Law Limits Prices on Government Information
New Federal Law Limits Prices on Government Information
James Love (love@Essential.ORG)
Wed, 31 May 1995 10:50:46 -0400 (EDT)
Date: Wed, 31 May 1995 10:50:46 -0400 (EDT)
From: James Love <love@Essential.ORG>
To: roundtable <roundtable@cni.org>
Subject: New Federal Law Limits Prices on Government Information
Message-Id: <Pine.SUN.3.91.950531105035.27961E-100000@essential.essential.org>
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TAP-INFO - An Internet newsletter available from listproc@tap.org
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TAXPAYER ASSETS PROJECT - INFORMATION POLICY NOTE
Pricing of Government Information
May 31, 1995
NEW FEDERAL LAW LIMITS AGENCY PRICES
FOR GOVERNEMNT INFORMATION
May 31, 1995
James Love (202/387-8030; love@tap.org)
- Congress passes new law on information dissemination (Public
Law 104-13 ) which contains important provisions limiting
government prices for government information.
- For the first time, federal agencies are prohibited from
charging prices for information which exceed the cost of
dissemination. Government royalties or fees on the
redissemination of information are prohibited. Agencies are
also required to disseminate underlying records of
information products, and prohibited from entering into
exclusive distribution agreements that interfere with
"timely and equitable availability of public information to
the public."
- Act is good model for state legislation.
- Act covers information products and services from Executive
Branch agencies, but does not bind courts or legislative
branch of government.
- Tough provision limiting prices for government information
was supported by broad coalition of right-to-know groups and
data vendors.
- When the legislation passed the House of Representatives, it
included a controversial provision for a "waiver" of pricing
rules if an agency simply placed a notice in the Federal
Register. TAP and others opposed the pricing waiver.
- Representatives Morella (R-MD), Representative Cardiss
Collins (D-IL) and Senator Glenn (D-OH) worked to
successfully eliminate "waiver" provision in final bill.
The Paperwork Reduction Act (PRA) is a controversial law
primarily designed to limit the ability of federal agencies to
issue regulations affecting businesses, non-profits and
individuals. Many citizen groups concerned with the environment,
health, safety and worker rights criticized the deregulatory
features of the legislation. The legislation also sets important
national policies with respect to the dissemination of government
information.
When the House of Representatives took up the PRA
legislation in HR 830, Representative Clinger (R-PA) inserted a
provison in the bill for West Publishing that would have severely
limited public access to agency records managed by private
contractors, and created other barriers to public access to
government information. The West provision was deleted from the
legislation after a bitter and public debate. [See TAP-INFO,
"Internet Community KO's Anti-FOIA Provision," February 15,
1995.]
The "West Provision" in the legislation was such a serious
threat to the public's right-to-know, that it nearly overshadowed
another very important issue concerning the pricing of government
information. The PRA had been debated for several years, and the
information dissemination sections of the bill had been a
battleground over the privatization of public records, leading to
bitter fights between right-to-know groups and data vendors.
However, the right-to-know groups and the data vendors generally
agreed that prices for government information should be no more
than the cost of dissemination, and every version of the
legislation since 1989 had contained a statutory limit on data
charges. The Bush and Clinton Administrations had also issued
voluntary policy directives to agencies supporting limits on data
prices (with decidedly mixed results), through OMB Circular A-
130.
Thus it was a surprise when HR 830 was introduced with a
section which allowed any federal agency to "waive" the pricing
limits by simply placing a notice in the Federal Register. Staff
for Representative Clinger (R-PA) said that the provision was
inserted at the last minute at the request of Sally Katzen, the
Clinton Administration choice to head the Office of Information
and Regulatory Affairs (OIRA). At the time Katzen made the
request, she was reviewing a request from TAP to determine if the
pricing for AGRICOLA, a government database of citations and
research abstracts from research on agriculture, pesticides and
the environment, was excessive, given the pricing guidelines of
A-130.
HR 830 was one of the fast tracked Contract with America
bills. It was introduced on February 6, with hearings on the
7th, subcommittee mark-up on the 8th, and full Committee markup
on the 10th. The American Library Association, TAP and Jim
Warren put out information on the Internet about the pricing
issue. Representative Major Owens (D-NY) offered an amendment at
the full committee mark-up to delete the pricing waiver, but he
bundled his amendment with other amendments dealing with the
Government Printing Office, and the effort failed, apparently in
part because of the confusion over the package of amendments.
There was consideration of a floor amendment, but it would
be tricky, because Representative Clinger had already suffered a
humiliating defeat on the West Provision, and it would be
tempting fate to try a second confrontation with the chairman of
a full committee. Instead, an effort was made to modify the
record on the intent of the waiver, and then to seek its removal
in a House/Senate conference committee. When the bill came up
for a vote on the House floor, Representative Constance Morella
(R-MD) engaged Representative Clinger in a diplomatic colloquy
about the pricing waiver, eliciting an elaboration of his intent.
In response to Representative Morella's questions, Representative
Clinger said that "this is not a fundraising device," and would
be used in a "very rare and probably exceptional kind of
situation." [Congressional Record, February 22, 1995 (House),
Pages H2010-H2029, the full colloquy is reported below.]
HR 830 passed the House with the pricing waiver intact, but
it was indeed eliminated in the conference committee. (The bill
that eventually became law was S. 244, Public Law 104-13 ).
Representative Cardiss Collins (D-IL) and Senator Glenn (D-OH)
were reportedly active in seeking the removal of the pricing
waiver. A number of right-to-know groups were helpful on this,
including particularly helpful efforts from Anne Heanue from the
American Library Association, Patrice McDermott from OMB Watch
and Jim Warren, a citizen activist from California. The
Information Industry Association was helpful. Ron Plesser, a
lobbyist who represents several data vendors (and who was once
referred to by TAP as "the devil himself" ) was very effective
working behind the scenes to secure the removal of the pricing
waiver provision.
There are three appendixes: (1) the actual language of the
dissemination provisions of the PRA which are now law, (2) the
pricing waiver that was included in HR 830 but deleted from the
bill in the conference committee, and (3) the colloquy between
Representatives Morella and Clinger.
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APPENDIX I
PAPERWORK REDUCTION ACT
SECTIONS ON INFORMATION DISSEMINATION
[[Page 109 STAT. 163]]
Public Law 104-13, 104th Congress
from GPO Access
An Act
To further the goals of the Paperwork Reduction Act to have
Federal agencies become more responsible and publicly accountable
for reducing the burden of Federal paperwork on the public, and
for other purposes. NOTE: became law on, May 22, 1995, was S.
244.
SEC. 2. COORDINATION OF FEDERAL INFORMATION POLICY.
Chapter 35 of title 44, United States Code, is amended to
read as follows:
``3506. Federal agency responsibilities.
``(d) With respect to information dissemination, each agency
shall--
``(1) ensure that the public has timely and equitable
access to the agency's public information, including ensuring
such access through--
``(A) encouraging a diversity of public and private
sources for information based on government public information;
``(B) in cases in which the agency provides public
information maintained in electronic format, providing timely and
equitable access to the underlying data (in whole or in part);
and
``(C) agency dissemination of public information in
an efficient, effective, and economical manner;
``(2) regularly solicit and consider public input on the
agency's information dissemination activities;
``(3) provide adequate notice when initiating,
substantially modifying, or terminating significant information
dissemination products; and
``(4) not, except where specifically authorized by
statute--
``(A) establish an exclusive, restricted, or other
distribution arrangement that interferes with timely and
equitable availability of public information to the public;
``(B) restrict or regulate the use, resale, or
redissemination of public information by the public;
``(C) charge fees or royalties for resale or
redissemination of public information; or
``(D) establish user fees for public information that
exceed the cost of dissemination.
``Sec. 3502. Definitions
``As used in this chapter--
``(1) the term `agency' means any executive department,
military department, Government corporation, Government
controlled corporation, or other establishment in the executive
branch of the Government (including the Executive Office of the
President), or any independent regulatory agency, but does not
include--
``(A) the General Accounting Office;
``(B) Federal Election Commission; [[Page 109 STAT. 165]]
``(C) the governments of the District of Columbia and of the
territories and possessions of the United States, and their
various subdivisions; or
``(D) Government-owned contractor-operated facilities,
including laboratories engaged in national defense research and
production activities;
``(5) the term `independent regulatory agency' means the
Board of Governors of the Federal Reserve System, the Commodity
Futures Trading Commission, the Consumer Product Safety
Commission, the Federal Communications Commission, the Federal
Deposit Insurance Corporation, the Federal Energy Regulatory
Commission, the Federal Housing Finance Board, the Federal
Maritime Commission, the Federal Trade Commission, the Interstate
Commerce Commission, the Mine Enforcement Safety and Maritime
Commission, the Federal Trade Commission, the Interstate Commerce
Commission, the Mine Enforcement Safety and Health Review
Commission, the National Labor Relations Board, the Nuclear
Regulatory Commission, the Occupational Safety and Health Review
Commission, the Postal Rate Commission, the Securities and
Exchange Commission, and any other similar agency designated by
statute as a Federal independent regulatory agency
or commission;
``(12) the term `public information' means any information,
regardless of form or format, that an agency discloses,
disseminates, or makes available to the public;
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APPENDIX II
PRICING WAIVER PROVISION INCLUDED IN HR 830
BUT DELETED IN FINAL VERSION OF BILL
agencies may not:
``(D) establish user fees for public information that exceed
the cost of dissemination, except that the Director may waive the
application of this subparagraph to an agency,
if--
``(i) the head of the agency submits a written request to
the Director, publishes a notice of the request in the Federal
Register, and provides a copy of the request to the public upon
request;
``(ii) the Director sets forth in writing a statement of
the scope, conditions, and duration of the waiver and the reasons
for granting it, and makes such statement available to the
public upon request; and
``(iii) the granting of the waiver would not materially
impair the timely and equitable availability of public
information to the public.
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APPENDIX III
COLLOQUY BETWEEN REPRESENTATIVES
MORELLA AND CLINGER ON PRICING WAIVER
[Congressional Record: February 22, 1995 (House)]
[Page H2010-H2029]
>From the Congressional Record Online via GPO Access
Mrs. MORELLA. Mr. Chairman, . . .
I would like to engage in a colloquy about one section of
the bill that has been brought to my attention by some of my
constituents, section 3506(d)(4). As you know, Mr. Chairman, this
section of the bill would permit the Office of Management and
Budget to waive the cost of dissemination rule regarding
information dissemination to the public. I know that you share my
belief that the Federal Government should not be in the business
of profiting from its information resources and that the report
language in H.R. 830 reflects your convictions in this regard
and, further, Mr. Chairman, I know that you are committed to
refining the language in this section in the conference
committee.
The report language states very clearly that the user fee
waiver provision exists in the bill only to provide some
flexibility in the event of unforeseen rare instances where there
is a compelling need for a user fee, a compelling need, and that
compelling need, Mr. Chairman, is to be directly related to the
information in question rather than to any fiscal motivation on
the part of Federal agencies.
Is that your understanding of the provision, Mr. Chairman?
Mr. CLINGER. Mr. Chairman, will the gentlewoman yield?
Mrs. MORELLA. I yield to the gentleman from Pennsylvania.
Mr. CLINGER. Mr. Chairman, the gentlewoman is absolutely
correct.
Mrs. MORELLA. And also, in other words, Mr. Chairman, the
committee is in no way authorizing the Office of Management and
Budget to routinely permit the levying of broad user fees aimed
at earning revenues for the Federal Government and, on the
contrary, the committee has specifically stated in its report
that the granting of waivers will be rare and that the authorized
terms and conditions will narrowly circumscribe any waivers? Is
that correct?
Mr. CLINGER. If the gentlewoman will yield further, that is
absolutely correct. This is not a fundraising device. This is
purely a very rare and probably exceptional kind of situation
that might arise where an agency would be entitled to retain some
of the funds, but it requires a very difficult procedure to get
that approval and would be used in only exceptionally rare
circumstances.
Mrs. MORELLA. I appreciate the gentleman stating this for
the record, and I know that you are committed to aggressively
pursuing the intent of this bill with regard to this section and
that the committee will act swiftly to curb any abuses of the
provision.
I thank the gentleman very much for this very important
clarification.
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