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Transparency, Accountability, and Consent in Evidence Building

Friday, July 20, 2018

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The U.S. government can only be effective if the policies it creates and the services it operates work. That’s why analyzing the efficacy of those policies and services is an essential part of government program operations. Officials in government must enable analysis of data to determine whether policies and services are achieving their intended objectives. Just as program administrators use data to determine individuals’ eligibility for services, policymakers also need data to inform them about the success of program decisions.

The U.S. government’s executive branch uses data from the American public in order to evaluate programs, services, and policies. Transparency, accountability, and consent are vital components of these ethical and legal uses.

As the executive branch increasingly encourages agencies to evaluate programs and policies, there is an increased demand to combine data collected from different sources to provide policy-relevant conclusions. A firm understanding is needed about what consent means, how the concept is applied in conjunction with transparent notification processes, and how other accountability mechanisms are relevant.

Notification, oversight, and consent are important when using data collected primarily for administering government programs. The
government’s use of those data may affect individuals’ rights through the provision of services or benefits. Because there is a need for the collection of these data, the government has an obligation to use evidence transparently and with accountability.

When the American public provides consent for the government to collect confidential, identifiable data for program administration, those data should also be available for statistical analyses. Individual and societal consent provided for the use of administrative data typically extends to statistical uses that do not result in the alteration of individual rights. This extension occurs when the activities are conducted under a legal framework that affords clear confidentiality protections and use restrictions for identifiable data, coupled with notice about uses.

There is an increased demand to combine data collected from different sources to provide policy-relevant conclusions. 

The government’s existing legal framework developed by Congress provides accountability for data collection, data disclosure, and data uses across government. A suite of laws, including the Paperwork Reduction Act, the Privacy Act, the E-Government Act, and the Confidential Information Protection and Statistical Efficiency Act. This combined framework ensures that when consent and notification exist for the use of administrative data in program operations, related uses for narrower statistical activities are generally permissible. Thus, U.S. laws include strong mechanisms that articulate the transparent processes for acknowledging consent, notice, and oversight for the government’s use of administrative data to operate programs when conducted as “statistical activities” for “statistical purposes.”

The existing legal framework recognizes there are multiple approaches to ensuring the ethical use of government-collected data; consent is only one of several approaches. Notification and accountability are also recognized as essential mechanisms through the inclusion of certain exceptions provided in the Privacy Act, which allow for some information to be redisclosed across agencies without explicit, individual consent when appropriate advance notice was given and when accountability mechanisms are in place. For example, data can be combined and made available (1) when for a “routine use,” (2) when provided to the U.S. Census Bureau, or (3) when records are not individually identifiable and are used for research.

When the government has not made the purpose for data use clear at the time of collection, uses are limited and additional notification or consent may be required. Under current law and practice, identifiable data can typically only be used when the activities are consistent with the purpose of the data collection. Restrictions also exist when a program combines its administrative data with those from another program for evidence-building activities and the intended purposes were not sufficiently addressed when data were collected.

Lack of clarity among program administrators regarding the relationship between evidence-building activities and program operations has created confusion about how administrative data can be used. The lack of clarity about the use of data is a major impediment to evidence building in government, and it means data are often inaccessible in practice, even when they are legally available for this purpose.

Moving forward, the government must take steps to better articulate the relationships between accountability, transparency, and consent, and how to apply these concepts in practice for the use of administrative data in evidence building. An important step is to declare the right of access for certain entities to use data for evidence building, recognizing strong mechanisms are in place to review consent, protect confidentiality, limit uses, make notifications about use, and provide oversight. At the same time, the government must also do more to ensure that information about how it uses data is easy for the American public to access and understand.

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