expect in conditions of uncertainty about ultimate power. 361 If the
uncertainty is removed, behavior should change somewhat. Statu-
tory ratification of the program could produce a more peremptory
approach by OMB. It is not clear, however, that the change would
be very great. For example, OMB's behavior under the Paperwork
Reduction Act does not seem sharply different from that under the
executive orders. As all students of bureaucracy know, many vari-
ables affect OMB-agency relationships-for example, the nature of
the personal relationship between an agency head and the
President.

The informal agreement that OMB reached with its congres-
sional oversight committees in 1986 did not establish a long-term
resolution of the issues that had arisen during the Reagan adminis-
tration. 362 A management program in the new administration will
probably encounter strong pressure to reach a similar modus vivendi
with the committees. In that case, the primary advantages of a stat-
ute would be to give Congress an opportunity to decide which
rulemaking programs should be exempt from review, and to enact
more permanent controls.

Congress has begun to consider bills that would forbid or limit
OMB review of particular programs. 363 In the absence of a gener-
ally applicable statute, the executive might simply apply its program
to the independent agencies, letting the courts struggle with Morri-
son's criteria to define the limits of executive management. Instead,
the better course would be to put OMB review on a statutory basis,
with controls reflecting experience to date.

361. Executive privilege controversies between the President and Congress provide a prominent example. See P. SHANE & H. BRUFF, supra note 317, at 184-208.

362. The denouement of the effort to "defund" OIRA occurred when Senate and
House conferees agreed to reauthorize the Paperwork Reduction Act as part of the con-
tinuing resolution passed in October 1986. H.R. CONF. REP. 1005, 99th Cong., 2d Sess.
349 (1986). The compromise provided for: (1) a separate line item account for OIRA in
OMB's budget with authorized spending of $5.5 million for the next three years; (2)
Senate confirmation of the administrator of OIRA, and (3) a prohibition on the use of
the funds authorized for "any function or activity which is not specifically authorized or
required by this [Act)... [T]he review of a rule or regulation is specifically authorized
or required by this [Act) only to the extent that such review is for the sole purpose of
reviewing an information collection request contained in, or derived from, such rule or
regulation." Id. at 355. The sponsors of the reauthorization compromise explained that
OIRA could perform other functions if it obtained separate funding for them. Id. at 771.
The appropriations act also provided $5.5 million for OIRA with no restrictive lan-
guage, except to continue the prohibition against OMB review of agricultural marketing
orders. Id. at 330.

363. Eg. S. 2443, 100th Cong., 2d Sess. (1988) (limiting review of the Nuclear Regu latory Commission).

relations of OMB with both agencies and congressional committees.
Another enduring tension in administrative law, between law and
politics in regulation, was also present. It was exacerbated (as was
the overall level of conflict) by the adminstration's bias toward in-
dustry. From the point of view of the administration, however, the
program enjoyed unprecedented success in imprinting regulation
with the President's own principles.

An executive oversight program of this sort is constitutional, and
is beneficial in its promotion of the political accountability of regula-
tion. Nevertheless, its influence must be kept within the bounds of
discretion conferred by existing statutory policies and the adminis-
trative records compiled in the agencies. I believe that the "paper
trail" procedures that developed through OMB-congressional com-
promise are well suited to that task, with some modifications. In a
new administration, where this experiment in government contin-
ues, the time may be ripe to place it on a more permanent statutory
basis.

LEGAL REPORT

BY W. JOHN MOORE

Fo

or the computer Columbus eager to explore the billions of megabytes in federal computers, this should be an age of adventure. Within the government's computers lies an ocean of information awaiting discovery by the plucky hacker armed with trusty keyboard and modem.

But reality rudely interrupts such daydreams. Government policy, particularly during the Reagan Administration, has discouraged public access to electronic information.

In the meantime, the boom in information technology has far outpaced government policies designed to manage it. So many data bases have sprung up within the federal government that there's not even an up-to-date official list, printed or computerized, of what is available. "The federal government today stands at a major crossroads," Congress's Office of Technology Assessment (OTA) concluded in a 1988 study, Informing the Nation: Federal Information Dissemination in an Electronic Age. "Congressional action is urgently needed to resolve federal information issues."

With the blessings of industry and public-interest groups, the Bush Administration and Congress seem ready to resolve some of these issues through compromise amendments to the 1980 Paperwork Reduction Act. The amendments would finally set some ground rules for making electronic information available to the public.

For advocates of public access, a new government policy can't come too soon. Over the past decade, public-interest groups have warned that the public has been shortchanged during the information revolution because citizens' rights to access have largely been ignored. "Outmoded government information law and policies are creating new forms of government secrecy in the computer age and inequities between different constituencies in terms of their ability to afford, access and use electronic public information,"

Jerry J. Berman, director of the Information Technology Project at the American Civil Liberties Union (ACLU), wrote in an essay published last year by the Markle Foundation.

Nothing has bedeviled public-interest groups or business like the repeated skirmishing over whether the 1966 Freedom of Information Act (FOIA) applies to electronic information such as data bases. Horror stories abound of agency inaction and Justice Department intransigence on FOIA requests.

The Labor Department's Occupational Safety and Health Administration (OSHA), for example, refused the Public Citizen Litigation Group's request for computerized data on company compliance with federal laws. OSHA said such an effort would involve complicated programming efforts. And, it said, the information was no longer available in printed form.

Even victory can be turned into defeat. After winning a legal battle with the CIA over access to a list of previous FOIA requests, the National Security Archive, a Washington watchdog group, was rewarded with a three-and-ahalf-foot-high mound of computer printouts instead of floppy disks.

Businesses complain, too. The Interior Department refused to give computerized files of 100-year-old land data to an energy company. Until litigation began, the Government Printing Office declined to give a publisher a computerized list of Federal Register subscribers. Fixing the FOIA problem

will be tricky. Some information policy experts favor an electronic FOIA. But others worry that opening the law to amendment would be risky because businesses, law enforcement agencies and some other government agencies would push for further exemptions. Litigation has produced enough victories that some public-interest attorneys favor continued efforts in the courts.

Even if the government decides to make computerized data available, other major problems arise over data dissemination. During the Reagan era, the Office of Management and Budget (OMB) called the shots on information policy. OMB wanted private industry to disseminate electronic information.

Much of the discussion has been obscured by the lingo of computer professionals. But the debate is over control of information, the lifeblood of the economy in the 21st century. Public-interest groups have warned that under OMB's policies, information barons eventually would control these data, becoming the next century's equivalent of the railroad and oil monopolies of a century ago. High-priced agency data banks with exorbitant on-line costs would serve only corporate users, and average citizens would be unable to use the systems, critics say.

"The United States is in danger of becoming an information autocracy," Alan F. Westin, a Columbia University law professor, told the House Government Operations Subcommittee on Government Information, Justice and Agriculture last May. "The lords of the new information age will be the financially and technologically well-endowed."

PUBLIC OR PRIVATE?

Over the past decade, a computer revolution has transformed government operations. In 1982, the government spent $9.2 billion on information technology, according to the OTA report, and by 1988, expenditures were $15 billion.

Information USA Inc., a San Diego company, in a 1987 report listed 440 federal data bases. One is the Commerce Department's National Technical Information System, which distributes computer tapes and diskettes of mostly hard-core scientific data. No threat to Tom Clancy thrillers here: Its best-seller is Urban Hydrology for Small Watersheds.

The Bureau of National Affairs Inc., a Washington publisher, estimated that the government provides on-line or direct telephone access to about 50 data bases, including the Census Bureau's CENDATA system and Labor Department statistics.

More often, a private company, through private data bases, sells government information to the public after add

Jerry J. Berman of the American Civil Liberties Union
He favors rewriting the Freedom of Information Act to bring it up to date.

ing special features such as indexes or
user-friendly instructions.

Major electronic data collection and dissemination programs are in place at some agencies and departments. These include a variety of programs.

Under congressional mandate, the Environmental Protection Agency (EPA) has set up the first federal public-access data base to help the public get computerized information on toxic chemicals. The Federal Maritime Commission has an electronic filing system for shipping rates. The U.S. Patent and Trademark Office has the Automated Trademark System. Perhaps the best-known is the Securities and Exchange Commission (SEC) Electronic Data Gathering System, or EDGAR, which will eventually handle six million pages of securities filings a year at a cost of $10 million annually over the next five years. Even the government's most traditional arm, the Supreme Court, announced in December its Operation Hermes, a plan to disseminate its opinions electronically.

The electronic revolution will continue, if only because of continued advances in technology. Consider the CD-ROM (compact disk read-only memory), a $2 item that provides a quantum leap in information management. A CD-ROM stores the equivalent of 1,650 floppy disks, 30 hard disks or 15 computer tapes.

The public's access to government data on a CD-ROM has never been been clarified, however. The Reagan Administration, in fact, discouraged on-line access.

In 1985, OMB announced, in Circular A-130, a policy calling for "maximum feasible reliance" on the private sector for dissemination of government information. Last year, OMB proposed amend

ments to that policy. The revised circular told federal agencies to provide raw computer information to private companies, essentially at cost. Moreover, OMB said, the government should not get into the information processing business by making data easier to use.

The proposals provoked more than 200 negative responses. Most respondents said that under OMB's proposals, corporate information giants could buy government computer tapes at low cost, load the data on mainframe computers and resell the data, at a marked-up price, to on-line subscribers. "Although government user fees for unstructured government data will be low, nothing will prevent private distributors from making a commercial killing," the Public Interest Computer Association told OMB last April. "The taxpayer will be ripped off."

In October, PC/Computing magazine reported that South Dakota Gov. George S. Mickelson was outraged after an aide told him that information from an Agriculture Department data base was available only from a government contractor, Martin Marietta Corp., at a cost of hundreds of dollars.

Last year, a battle royal erupted over a Federal Maritime Commission plan to computerize some shipping rates and provide the data on-line to interested parties. Transax/Rates, a division of Knight-Ridder Newspapers Inc.'s Journal of Commerce Inc., bitterly opposed the proposal, as did the Information Industries Associ ation and OMB. Transax/Rates had spent million of dollars in the 1970s to produce a computerized data base using commission tariffs. A congressional compromise last year resolved the issue by allowing limited on-line access to the data.

The SEC'S EDGAR, meanwhile, encountered repeated start-up problems and delays in implementation. And some critics say that on-line hourly rates charged by private information companies-$150 is the rate for users of some services offered by Mead Data Central Inc., for example are too expensive. The National Library of Medicine's MEDLARS program charges on-line users only $25 an hour.

vate-sector approach pushed by OMB. And the compromise bill on electronic data is designed to expand public access.

formation, Congress took a big step by passing the 1986 Superfund Amendments and Reauthorizaton Act, which set up the EPA data base as a way of meeting community right-to-know objectives. (See NJ, 11/26/88, p. 3006.)

More than 30,000 companies are required to file reports on 300-plus toxic substances. The information goes into a data base known as the Toxic Release Inventory (TRI). Only limited user fees are permitted, and fees are waived for publicinterest searches.

The implementation of the TRI has been less than perfect, however. Gary D. Bass, executive director of OMB Watch, a public-interest watchdog group, said the program has been bogged down with mistakes because of lack of money, education and outreach efforts. Citizens' use of the TRI represents only about 1 per cent of the total usage of the system, Bass said; the major users, he said, are companies that want to find out what their competitors are up to. CONGRESSIONAL ACTION

Nevertheless, Congress, by insisting on this open-disclosure program, showed that it would not go along with the pri

nication. Costs to users would be as low as possible, and fees would be waived when appropriate. Federal agencies would have to consider competing efforts by information companies, but the new provisions would reject making privatization the solution in all instances. OMB would still call the signals on government information policy, but agencies would be given more latitude to go their own way on data dissemination.

"We're trying to impose some affirmative obligations on federal agencies and OMB," said Rep. Robert E. Wise Jr., DW.Va., chairman of the Government Operations subcommittee. Wise, who helped hammer out the agreement, called the bill's chances for enactment "reasonably good," given the bipartisan support for the compromise language and the need to reauthorize the paperwork law.

The bill draws cheers from most computer information experts. It "would be a major step forward in establishing a public policy favoring public access to electronic information," said the ACLU's Berman, a Benton Foundation fellow.

"The legislation is giving the congressional intent that government has the responsibility for making its own informa

Richard A. Bloom

tion readily available to users," said Fred B. Wood, a senior associate in OTA's Communication and Technologies Program and author of the OTA study.

Critics and even some supporters of the Wise bill fear that OMB would retain too much clout. The American Library Association, in a blistering letter to Wise, adamantly opposed the measure. Other advocates of public access such as Public Citizen and OMB Watch share some of the concern about OMB's role. "But there is a recognition that the worst possible step is to basically leave OMB without any statutory guidance at all," said David Plocher, a staff attorney with OMB Watch. Plocher also said he sees a change of heart at OMB in the Bush Administration: "a kinder, gentler OMB, I think."

"I think the bill is reasonable," Wise said in an interview. "It is a consensus document.

"We have to start down the road of dealing with the dissemination of electronic information," Wise said. But the legislation has limited goals, he added: "No way is it an electronic Freedom of Information Act."

OPEN ACCESS

As envisioned by its supporters, amending FOIA for the electronic age would finally guarantee citizen access to computer data bases, files, magnetic tapes, CD-ROMs and other formats.

Enacted in 1966, FOIA has opened gold mines for journalists, librarians, scholars and even commercial users hoping to extract vital data from the federal government's trove of paper documents. In 1988, FOIA requests surged to 394,914 at all federal agencies, according to Justice Department figures.

But questions about using FOIA to obtain government computerized data remain largely unanswered. There is general, albeit not total, agreement that electronic data can be subject to FOIA. Various federal courts have enunciated such a policy. In 1988, the Administrative Conference of the United States scolded agencies for frustrating the public's efforts to obtain computerized data. Last year, the American Bar Association (ABA) Committee on Access to Government Information and Privacy also warned federal agencies against construing FOIA to exclude computer records and programming.

A recent Justice Department survey of department and agency practices on handling electronic FOIA requests revealed a generally restrictive policy on computer information. But the responses differed tremendously from agency to agency. "What's amazing if you read these agency responses is this palpable fear of the electronic future," said Thomas Blanton, dep

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