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This test tests the fn:data() function on an untyped element. However, the dm:typed-value accessor for InfoSet construction allows to return the dm:string-value accessor as an xs:untypedAtomic value. I think that this test should allow an alternative non-error outcome.
The WG looked at this and we think the source document is typed (by schema validation) as defined in the qname environment, therefore we're dealing with an element whose type annotation has element only content, therefore an error is the only possible outcome. (Please push back if you think we are wrong)