Reinvigorating the Paperwork Reduction Act

The Paperwork Reduction Act (PRA) sounds like possibly the driest, most boring, most inconsequential statute on record. It governs how agencies can gather information from the public—or require third-party disclosures by the public—through what are known as information collection requests.

But there are important competing interests beneath the Act’s incredibly detailed provisions. Too many requests can impose an intolerable burden on the public, and too cumbersome a process for approving those requests in advance can reduce the availability of valuable information for government decision-makers.

There is a way forward, but it requires changes from both the agencies and the White House Office of Management and Budget (OMB)—changes that neither has been inclined to undertake.

The government’s need for information is enormous. It requires data to make informed policy decisions, monitor compliance with existing regulations, ensure accountability with statutory qualifications for various benefit programs, evaluate ongoing mandatory and voluntary governmental activities, obtain customer satisfaction feedback, and more. Yet every request for information imposes costs in terms of time and resources that add up to an extraordinary amount: currently almost 10 billion paperwork burden hours annually.

Almost 80 percent of that burden belongs to the Internal Revenue Service, a product of a very complicated tax code that doles out deductions and credits for documented transactions. But the remainder is still significant and a chronic source of complaint from those who must respond to the information collection requests, especially small businesses, individuals, and even state and local governments.

Each government agency has little incentive to curb its own demand for information: Agency officials often rationalize that asking just a few more questions could reveal interesting and possibly useful information. So, as with many things in the government, the PRA establishes a process for independent review at the agency itself and a second process for review at the White House Office of Information and Regulatory Affairs (OIRA) within OMB.

The extended procedural steps in that two-tiered review process—including two distinct periods for public comment—not only jeopardize the certainty of ultimate approval, but also add greatly to the timeline for gathering information. Not surprisingly, many agency personnel see the PRA as a barrier to gathering information that would enable them to do their jobs better.

And so the debate rages, or perhaps simmers, within Washington—truly, an inside-baseball phenomenon. The agencies complain that the PRA precludes them from getting needed information on a timely basis, and defenders of the PRA complain that agencies are both undisciplined and unresponsive to appeals for restraint in imposing burdens on the public.

Most of these allegations are cast in sweeping terms—all or nothing, anti-PRA or pro-PRA. Unleash the agencies to do what they want, or keep a tight hold with a multi-layered review process on any and all information collection requests.

But it does not have to be that way. There is a sensible way forward.

When Congress passed new and greatly improved amendments to the Paperwork Reduction Act in 1995, OMB issued guidance to the agencies advising them about steps to take in their review and in OIRA’s review. The guidance also described procedures under which OMB could delegate approval authority to agencies that implemented a fair, independent process to review information collection requests. OMB stated that these delegations would be “an acknowledgement that the agency has met, and is able to continue to meet, the spirit and substance of the PRA.”

This was a door opener, a carrot, an incentive for agencies to create appropriate internal review processes. At the time, there were few, if any, delegations made to the agencies, in large part because most agencies had little, if any, capacity to review information collection requests independently of the requesting office. This was similar to agencies’ somewhat limited capacity to undertake serious cost-benefit analyses of their regulatory proposals: Some agencies did have solid economic expertise and support, but others did not.

Since the 1990s, most, if not all, agencies have developed internal expertise and capacity to do cost-benefit analyses. Some of the least capable agencies at the time are now able to prepare very competent regulatory impact analyses.

Similarly, OIRA in the mid-1990s expected agencies to develop internal resources and capabilities to carry out PRA reviews effectively. Subsequent statutes like the Information Technology Management Reform Act of 1996 and the E-Government Act of 2002 should have helped these efforts—these Acts, respectively, required each agency to name a chief information officer and established a chief information officers council to provide advice on information management policies.

But the expected increased delegation for PRA review to the agencies has never materialized. During the George W. Bush Administration, the U.S. Government Accountability Office published a report that found many agencies were not complying with provisions of the PRA, faulting both agencies’ internal processes and the relevant OMB guidance. OIRA acknowledged that the guidance was outdated and said it would explore alternative approaches to ensure compliance with the PRA. But nothing was done.

Then, President Barack Obama’s OIRA sought to clarify agency obligations under the PRA and to streamline OMB approval for some types of information collections. All good, but there was still no movement towards greater delegation.

Was OIRA reluctant to part with its power? Were agencies less than successful in developing their internal competence? It is difficult to say from the outside. It may even be difficult to gauge the situation accurately from the inside. But whatever the reason, the plant did not take root and begin to grow.

And that is the situation today. The failure of agencies to develop the capability to review and approve their own information collection requests and the failure of OIRA either to push or to entice them to move in that direction has been a lost opportunity. The PRA should be administered to enable agencies to meet the government’s legitimate need for information without unduly burdening those who have and can supply that information. It deserves another look.

Sally Katzen served as the Administrator of the Office of Information and Regulatory Affairs from 1993–1998 and is a professor at New York University Law School.