9th Cir. Holds that Information Quality Act Does Not Apply to Federal Agency Press Releases

On September 8, 2015, the U.S. Court of Appeals for the Ninth Circuit issued a ruling interpreting the Information Quality Act (IQA) and its implementation by two federal agencies—the Office of Management and Budget (OMB) and the Department of Justice (DOJ).  The case is W. Scott Harkonen, M.D., v. U.S. Department of Justice; U.S. Office of Management and Budget.  The question before the Court of Appeals was whether the Administrative Procedure Act and the IQA “confer the right to judicial review of a federal agency’s refusal to correct allegedly false or misleading information published by the agency in a press release”.  Affirming the district court, the Court of Appeals held that Dr. Harkonen could not obtain judicial review of an allegedly erroneous press release.  According to the Ninth Circuit, the IQA does not establish any standard to measure the accuracy of, for example, statements made in a press release.  The decision is significant because there have been so few decisions interpreting the IQA and, moreover, because  government agencies make extensive use of press releases in their day-to-day operations.

Dr. Harkonen was convicted of wire fraud related to the marketing of a drug for a condition that had not been approved by the Food and Drug Administration. Following the jury’s verdict, the DOJ issued a press release which asserted that Dr. Harkonen had falsified test results, despite the arguably more limited scope of the jury’s findings.  He requested a retraction of the press release from the DOJ, which was refused, as well as a reconsideration of that refusal based on the DOJ’s internal IQA guidelines, which was also refused.

The IQA was enacted in 2000 as part of the Consolidated Appropriations Act of 2001.  The IQA required OMB to draft guidelines to ensure the objectivity, utility, and integrity of information “disseminated” by federal agencies in fulfillment of the purposes and provisions of the Paperwork Reduction Act.  However, the statute does not define “dissemination”.  Each federal agency has issued its own guidelines interpreting the IQA, including the DOJ, and both the OMB and DOJ have excluded press releases from their definition of “dissemination” in their guidelines. Applying Chevron deference, the Court of Appeals held that this restrictive agency definition of dissemination was “a permissible interpretation of the statute,” citing to Prime Time Int’l Co. v. Vilsack, 599 F.3d 678, 685 (D.C.C. 2010).

Additional Source:  U.S. Department of Labor, Occupational Safety & Health Administration, OSHA’s Information Quality Assurance Process