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US CITIZENS HAVE A NEW BIG STICK TO USE  THESOCI-@aol.com
 Oct 12, 2002 23:58 PDT 
     UNITED STATES CITIZENS HAVE A NEW BIG STICK TO USE

                             by
                     James Roger Brown

"The truth is out there. Now the Government will have to tell you what
it is."

WHITTLING OUT AN UGLY SHILLELAGH

     Thanks to the skullduggery of a few short-sighted Washington
lobbyists and special interest groups, citizens now have a more powerful
weapon to fight lies, fraud, and corruption in the Federal Government
than the Freedom of Information Act (FOIA). With the FOIA, citizens can
access information, but, short of filing suit under Qui Tam or RICO, can
do little to force an end to government employee or official misconduct
that relies upon false or inaccurate information. This new weapon will
allow Citizens to attack how lies are told and undermine the foundation
by which fraud is committed.

     Now, it may be possible to actually force Agencies to stop lying
without having the deep pockets needed to file suit against the Federal
Government. Although limited in application to Federal Agencies, the
newly implemented law may be even more potent when used against a State.
It may be possible to prevent Federal Agencies accepting falsified
documents, reports, and statistics submitted by a State to obtain
Federal Funds. The only requirement is documentation that the
information provided to the funding Agency is falsified. Currently,
there is no fee or charge for challenging Federal information, which is
more cost effective for Citizens than the FOIA. Unless the situation is
extremely complicated, an attorney should not be necessary, just the
facts and a sharp mind.

     While the media and public were absorbed in Washington’s “Evil
Empire” spin crisis of the day, on October 1, 2002, Section 515 of the
Treasury and General Government Appropriations Act for Fiscal Year 2001
(Public Law 106–554) quietly went into effect. Fortunately for Citizens
in this rare instance, Section 515 was attached to the Appropriations
Act and slipped through Congress with virtually no consideration of the
full consequences of establishing information quality standards. The
nefarious intent behind the legislation was to allow corporations to
challenge and delay the expense of implementing science-based rules and
regulations applied to food, medicine, and chemical corporations. If
anyone had realized the power this law will give ordinary Citizens, the
people who thought of it would probably have been shot.

     The purpose of Section 515 is summarized in the Federal Register
(Reference 2 below):

“Section 515 directs the Office of Management and Budget (OMB) to issue
government-wide guidelines that ‘‘provide policy and procedural guidance
to Federal agencies for ensuring and maximizing the quality,
objectivity, utility, and integrity of information (including
statistical information) disseminated by Federal agencies.’’ By October
1, 2002, agencies must issue their own implementing guidelines that
include ‘‘administrative mechanisms allowing affected persons to seek
and obtain correction of information maintained and disseminated by the
agency’’ that does not comply with the OMB guidelines. These final
guidelines also reflect the changes OMB made to the guidelines issued
September 28, 2001, as a result of receiving additional comment on the
‘‘capable of being substantially reproduced’’ standard (paragraphs
V.3.B, V.9, and V.10), which OMB previously issued on September 28,
2001, on an interim final basis.” (P. 8452, Federal Register, Vol. 67,
No. 36. Friday, February 22, 2002.)

     OMB apparently has some brilliant people implementing this new law.
Important distinctions have been identified in the types of information
held by the Federal Government and the consequences for non-governmental
entities and persons relying upon Federal information. Someone even
realized that information published in peer reviewed journals may not
guarantee sufficient reliability to meet Federal information standards.
The only important element overlooked is the adoption of Sir Karl
Popper’s standards of testability, falsifiability and refutability for
identifying valid science adopted by the United States Supreme Court in
Daubert v. Merrell Dow Pharmaceuticals, Inc. The peer reviewed journal
issue was cited in the Federal Register:

“Journal Peer Review Always Sufficient? Some comments argued that
journal peer review should be adequate to demonstrate quality, even for
influential information that can be expected to have major effects on
public policy. OMB believes that this position overstates the
effectiveness of journal peer review as a quality-control mechanism.
     “Although journal peer review is clearly valuable, there are cases
where flawed science has been published in respected journals. For
example, the NIH Office of Research Integrity recently reported the
following case regarding environmental health research:
     ‘“Based on the report of an investigation conducted by [XX]
University, dated July 16, 1999, and additional analysis conducted by
ORI in its oversight review, the US Public Health Service found that Dr.
[X] engaged in scientific misconduct. Dr. [X] committed scientific
misconduct by intentionally falsifying the research results published in
the journal SCIENCE and by providing falsified and fabricated materials
to investigating officials at [XX] University in response to a request
for original data to support the research results and conclusions report
in the SCIENCE paper. In addition, PHS finds that there is no original
data or other corroborating evidence to support the research results and
conclusions reported in the SCIENCE paper as a whole.’ (66 FR 52137,
October 12, 2001).” (P. 8455, Federal Register, Vol. 67, No. 36.
Friday, February 22, 2002.)

INVOKING THE BIG HAIRY MONSTER

     Information classified as “influential” is given special
consideration and priority. After considering public comment following
publication of the proposed regulations, the definition of “influential”
was revised and narrowed as elaborated in the Federal Register:

“In this narrower definition, “influential”, when used in the phrase
“influential scientific, financial, or statistical information”, is
amended to mean that “the agency can reasonably determine that
dissemination of the information will have or does have a clear and
substantial impact on important public policies or important private
sector decisions.” The intent of the new phrase “clear and substantial”
is to reduce the need for speculation on the part of agencies. We added
the present tense—“or does have”—to this narrower definition because on
occasion, an information dissemination may occur simultaneously with a
particular policy change. In response to a public comment, we added an
explicit reference to “financial” information as consistent with our
original intent.” (P. 8455, Federal Register, Vol. 67, No. 36. Friday,
February 22, 2002.)

     Invoking “influential scientific, financial, or statistical
information” status in an argument challenging Federal information will
raise the stakes for the outcome. Since Federal Agencies are just
beginning to actually process challenges to information, what
“influential” status will mean for establishing priority and in decision
making is yet to be determined. “Influential” status is, however, the
biggest fundamental issue that can be raised in a challenge under this
new law.

     As with all new tools, how effectively it is used depends upon how
well and quickly it is mastered. Allowing American Citizens to
challenge the “quality, objectivity, utility, and integrity of
information” used by the Federal Government will enable us to destroy
the very foundation by which fraud, corruption, and exploitation is
foisted upon every one of us. Those about the business of using the
Government to commit evil deeds must be able to lie successfully in
order to succeed. Few Federal employees are even aware this information
challenging procedure even exists. If Citizens learn how to use this
process faster than Federal employees, we will have the edge in
maximizing the benefit to us.

     To facilitate getting ahead on the learning curve, the Reference
list below will take readers to the critical OMB information necessary
to begin understanding the logic and Guidelines governing the process.
Each Federal Agency must be contacted to obtain the procedures
established by that Agency for filing a challenge and to determine how
the person designated to process information challenges may be
contacted. With an understanding of the logical foundation and OMB
Guidelines, it might be possible to identify when Federal Agencies are
improperly implementing the OMB Guidelines.

     This new law may also provide a basis for challenging the
admissibility of information from Federal Agencies introduced as
evidence in judicial proceedings.   

     One euphemism for this law is the “Data Quality Act.” In order to
file a successful challenge, you must have your facts together and
documented.

     Good hunting.

[NOTE: The author has initiated a challenge to the entire Federal
database of child abuse statistics distributed by the National
Clearinghouse on Child Abuse and Neglect Information under contract to
The Administration for Children and Families, U.S. Department of Health
and Human Services.]

REFERENCES
1. Federal Register: Office of Management and Budget: Guidelines for
Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity
of Information Disseminated by Federal Agencies. Federal Register /
Vol. 66, No. 189 / Friday, September 28, 2001 / Notices
www.ers.usda.gov/features/informationquality/66fr49718.pdf

2. Federal Register: Part IX: Office of Management and Budget:
Guidelines for Ensuring and Maximizing the Quality, Objectivity,
Utility, and Integrity of Information Disseminated by Federal Agencies;
Notice; Republication. Federal Register / Vol. 67, No. 36 / Friday,
February 22, 2002 / Notices.
www.whitehouse.gov/omb/fedreg/reproducible2.pdf

3. Graham, John D, Ph.D. OMB'S ROLE IN OVERSEEING INFORMATION QUALITY.
Office of Information and Regulatory Affairs, Office of Management and
Budget, March 21, 2002.
www.whitehouse.gov/omb/inforeg/info-quality_march21.pdf

4. Graham, John D, Ph.D. MEMORANDUM FOR PRESIDENT’S MANAGEMENT COUNCIL
(with attachment): Agency Draft Information Quality Guidelines. Office
of Information and Regulatory Affairs, Office of Management and Budget,
June 10, 2002. www.ftc.gov/os/comments/sec515comments/omb020610.pdf

5. (a)Daubert v. Merrell Dow Pharmaceuticals, Inc.
Full text of decision: http://laws.findlaw.com/us/509/579.html
Citable article on the importance of the Daubert Decision which used
some of the same reasoning that appears in the OMB publication in the
Federal Register.
   (b)Orofino, Suzanne. “Daubert v. Merrell Dow Pharmaceuticals, Inc.:
The Battle Over Admissibility Standards for Scientific Evidence in
Court.” (J. Undergrad. Sci. 3: 109-111. Summer 1996)
http://hcs.harvard.edu/~jus/0302/orofino.pdf

© Copyright October 12, 2002, by James Roger Brown. All rights
reserved.
	
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