Nevertheless, making CBO subject to the Freedom of Information Act could undermine the operation of the budget process by interfering with our ability to obtain sensitive data and by infringing on the ability of Members to obtain certain information from us. CBO's ability to provide the Congress with the kind of information and analysis expected of us depends on our obtaining sensitive, though not necessarily classified, data. For example, we often collect data from industries and governmental entities that know that we are not subject to FOIA and, consequently, that we will not release the data they give us.

Furthermore, we receive countless informal queries and proposals from Members during the initial drafting of legislation that would be inappropriate to release before an official cost estimate or study is completed. In fact, if Members believe that such queries and responses will be subject to release under FOIA, they are likely to stop asking for our assistance. In short, making CBO subject to FOIA does not appear consistent with our mission or with the interests of the Congress. Indeed, if CBO does become subject to FOIA, it could adversely affect our practice of gathering essential information and, as a result, our products. A statutory requirement to comply could also result in significant administrative and financial burdens because of the extensive requirements of those laws.

CBO STAFF: HOUSE EMPLOYEES

OR EMPLOYEES OF A CONGRESSIONAL INSTRUMENTALITY?

CBO employees are often in an uncertain position with respect to laws that affect employee benefits, rights, and privileges. As noted earlier, Section 201(b) of the Congressional Budget Act states that "[f]or purposes of pay (other than the pay of the Director and Deputy Director) and employment benefits, rights, and privileges, all personnel of the [CBO] shall be treated as if they were employees of the House of Representatives." Nevertheless, S. 2071 defines CBO as an instrumentality of the Congress and, thus, CBO's employees as employees of a Congressional instrumentality.

This definition of CBO employees poses a potential conflict. For instance, if the Congress were to add any provision to this bill that treated employees of Congressional instrumentalities differently than employees of the House for the purpose of some employment right or benefit, CBO would face a dilemma. For the purposes of that law, would employees at CBO be employees of an instrumentality of the Congress or employees of the House of Representatives?

None of the bills currently under consideration appears to pose this conflict. We raise the question, however, because legislation recently introduced in the House of Representatives (H.R. 2721) that attempts to address the same issues as S. 2071 created this very problem. Should the Congress amend S. 2071 so that it treats

Congressional or House employees differently from employees of instrumentalities,

it should bear this issue in mind. In such a situation, the bill should state clearly into which category CBO employees fall.

CONCLUSION

Although the Congressional Budget Office remains committed to employee rights and recognizes the public's right to have access to information, S. 2071 does pose some concerns for us. Our value to the Congress lies with our ability to provide nonpartisan, professional analysis. If applied to CBO, both the employment-related laws and the Freedom of Information Act could affect the nature of our agency and,

therefore, the value of our work.

Thank you for sending me Senate Bill 2071, the "Congressional Accountability Act," and the outline of the substitute Senate Bill.

I have reviewed both documents, and offer the below response regarding the application of the following laws to the Office of Technology Assessment:

1.

-

Title VII of Civil Rights Act of 1964
OTA is
already in compliance with the substantive provisions
of the Act. The fact that political compatibility and
domicile may continue to be considered in hiring staff
for political offices does not affect OTA's hiring
practices--as OTA is a nonpartisan agency, such has
never been a criterion for positions at OTA.

2.

Fair Labor Standards Act of 1938 (FLSA)
currently offers informal comp time to staff.
comp time would be allowed pursuant to the substitute
Senate Bill, application of the FLSA would not
otherwise affect OTA's wage and hour practices.

OTA

Because

2

3.

4.

5.

6.

7.

8.

Age Discrimination in Employment Act of 1967 (ADEA)
OTA is already in full compliance with the substantive
provisions of the Act per OTA's Policy on Civil Rights
(dated Aug. 19, 1992). As such, application of the
ADEA would have no effect on OTA's practices regarding
hiring, firing, etc.

Americans with Disabilities Act of 1990 (ADA), titles I and II -- OTA is already in full compliance with the substantive provisions of the Act per OTA's Policy on Civil Rights (dated Aug. 19, 1992). As such, application of the ADA would have no effect on OTA's practices regarding hiring, firing, public services, etc.

Rehabilitation Act of 1973 OTA is already in full
compliance with the substantive provisions of the Act
per OTA's Policy on Civil Rights (dated Aug. 19, 1992).
As such, application of the Act would have no effect
on OTA's practices regarding, hiring, firing, etc.

-

OTA is

Family and Medical Leave Act of 1973 (FMLA)
already in full compliance with the Act. OTA's policy
on family and medical leave is more liberal than the
current provisions of the FMLA. As such, application
of the Act to OTA would have no effect on its policy
regarding family and medical leaves of absence.

Occupational Safety and Health Act of 1970 (OSHA)
Given the nature of OTA's work and its number of
employees, coming into full compliance with the Act
would require only minor adjustments to the work areas
within OTA's current location (600 Pennsylvania Ave.,
S.E.).

Federal Labor-Management Relations statute (FLMRS)
Because of the size and nature of OTA, application of
FLMRS would have, at most, a de minimus effect on the
agency.

Regarding the enforcement-related provisions for the above-mentioned laws (i.e., establishment of single new Office of Compliance; Board functions; claims and appeals; civil actions/judicial review; and remedies), OTA fully supports the current proposal as stated in the outline of substitute Senate Bill 2071. OTA's current enforcement provisions for the (currently applicable) above-mentioned laws are undergoing a process of reform. Although the Bill,