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Update on Applying FOIA to Federal Grants (10-15-99)

Most Recent Action

On August 11th, the White House Office of Management and Budget (OMB) released a revised draft of its Circular A-110 governing federal grants to universities and other non-profit organizations. The revision was mandated by the "Shelby provision" inserted into last year's omnibus appropriations bill (Public Law 105-277), which made data obtained with federal grant money subject to Freedom of Information Act (FOIA) requests.  OMB's initial draft revision in February drew over 9,000 responses, forty times more than normally received.  According to the August 11 Federal Register notice, the revision was developed to clarify definitions for three key concepts -- "data", "published", and "used by the Federal Government in developing policy or rules" -- and provide additional background discussion on the issue of cost reimbursement.

On September 30th, the White House Office of Management and Budget (OMB) released its final revisions of Circular A-110.  This version is very similar to the clarifying changes that were posted on August 11th.  The main differences between the two versions are minor changes in the definition of "research data" and "published".  The full text of the circular, as well as the proposed revisions that were released in August and February can be found at http://www.whitehouse.gov/OMB/grants/index.html#circulars.

The August 1999 Political Scene column in Geotimes, entitled "Freedom of Information: Too Much of a Good Thing?", deals with this topic. An AGU alert on the revised OMB rule is also available.

Action in the 106th Congress
Last October, Senator Richard Shelby (R-AL) slipped a provision into the 4,000 page omnibus appropriations bill requiring the Office of Management and Budget (OMB) to revise its policy on sharing federally funded research data under the Freedom of Information Act (FOIA). This provision directs OMB to change the regulations in Circular A-110 (Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations) "to require Federal awarding agencies to ensure that all data produced under an award will be made available to the public through the procedures established under FOIA." Under the provisions in Circular A-110, this provision would apply to most nonprofits that receive a grant or cooperative agreement, but not to federal contractors. Currently, only the sponsoring federal agency can request raw data from researchers. This provision is speculated to be in response to controversy over research used by the EPA in promulgating new air standards last year.

On Thursday, February 4, a notice appeared in the Federal Register seeking comments on a the proposed change by OMB. OMB's interpretation of language seemed to limit the effects of the provision by applying it only to "data relating to published research findings produced under an award that were used by the federal government in developing policy or rules" but does not define data, research, or policy.

Comments provided by AGI Government Affairs Director David Applegate to the February 4 notice appear below.

The scientific community has raised several concerns regarding the provision, which was not the subject of any hearings or legislation in the 105th Congress. In AIP FYI #4, Audrey Leath noted that "It has prompted concerns over the potential misuse of data before it has been peer-reviewed or published, the effect on intellectual property rights, and the possible violation of confidentiality of human research subjects. Additionally, researchers worry about delay and disruption to their work by groups with interests inimical to the results of the research." On January 26, National Academy of Science President Bruce Alberts wrote a letter to OMB Director Jacob Lew expressing these and other concerns. The letter is available on the NAS website. In the letter, Alberts noted that the new legislation does not define "data," and said that how OMB chooses to define data could have large implications for the regulation.

Opposition has also come from within Congress. In speaking about the provision, House Science Committee Ranking Member George Brown stated that it is "ironic that a provision described as a sunshine provision needed to be tucked into a 4,000 page bill in the dead of night." Brown introduced H.R. 88 on the opening day of the 106th Congress to repeal the provision. The bill was referred to the House Subcommittee on Government Management, Information and Technology, and a hearing was held on July 15th.  Last December, Brown wrote a letter to the OMB to express his concerns and urge an open and comprehensive review of this provision. Brown was joined in this letter by a bipartisan group of 22 of his House colleagues, including two Republican appropriations subcommittee chairs, Rep. John Porter and Rep. James Walsh.

By a 25-33 vote, an amendment introduced by Representatives James Walsh (R-NY) and David Price (D-NC) was defeated during a July 13th House Appropriations Committee markup of the FY2000 Treasury, Postal Service, and General Government Appropriations bill. The amendment sought to impose a one-year delay on implementation of the revision of Circular A-110 mandated in the last year's Omnibus Appropriations Act. The amendment would also have required OMB to contract with the National Academy of Public Administration (NAPA) to develop recommendations that OMB must consider in its revisions to Circular A-110.

A letter in support of the amendment, signed by the leadership of 115 industry, health and medical, scientific, and education organizations, including the American Geological Institute, provides some rationale for the action: "The Walsh-Price amendment would give OMB the time and broader consultation required to ensure that its policy meets the needs of the public and the research community without blindly using the blunt instrument of FOIA.  Regardless of OMB's diligence, it cannot resolve the serious problems caused by the statute's requirement to use FOIA for data release. The Walsh-Price amendment does not repeal the data release provision; it simply permits a "pause" for thoughtful consideration of the many issues involved in this area."

The Senate Science and Technology Caucus held a roundtable discussion on public access to federal data on July 27. A brief description and list of participants can be found on the summary of hearings page of the AGI website.

Additional information on this issue can be found in two AGU Science Legislative Alerts: 99-05 and 99-15.


Public Comment to February 4, 1999 Federal Register Notice by AGI Government Affairs Director David Applegate

April 2, 1999

F. James Charney, Policy Analyst
Office of Management and Budget
New Executive Office Building, Room 6025
Washington, D.C. 20503

Dear Mr. Charney:

I am writing to you concerning the proposed revisions to OMB Circular A-110 that was published in the Federal Register on February 4, 1999. I am the Director of Government Affairs at the American Geological Institute (AGI), a non-profit 501(c)(3) federation of 34 geoscience societies representing more than 100,000 earth scientists. There is considerable concern in our geoscience community about the proposed rule.

AGI strongly supports the open and timely dissemination of research data, particularly data collected with federal support, but the proposed rule goes too far in forcing researchers to release preliminary research results to the public at the expense of the advancement of science. It could preclude researchers from analyzing and publishing their data before it becomes public, a stark contrast to the system of publication in peer-reviewed journals that has become the foundation for sharing new knowledge in the scientific community.

Another problem with the proposed rule is that it does not define data. For geoscientists, data could consist of anything from raw electronic sensor output to field notebooks, geologic samples, or even drafts of research papers -- all of which could fall under the jurisdiction of the new rule. A related area of uncertainty in the rule is what constitutes "published" data. Although apparently a simple term, many geoscientists present part of their information during talks at scientific meetings before they are officially published. Making this information accessible before the scientists has an opportunity to formally publish the research would provide a disincentive for sharing information with researchers early in the process.

AGI has several addition concerns on the effect of the rule of researchers. Responding to requests for information would be time consuming and costly for both the scientists and the implementing agency. These costs could skyrocket if groups that are opposed to the possible results or type of research being conducted use FOIA as a tool to interrupt the research by making multiple requests for information.

In conclusion, I agree with the spirit behind the amendment of providing access to data, but this rule is not the proper method to address it. If you have any questions or would like additional information, please contact me at the numbers below.

Sincerely yours,

David Applegate, Ph.D.
Director of Government Affairs
American Geological Institute


Sources: American Institute of Physics, American Psychological Association, American Geophysical Union, Citizens for Sensible Safeguards

Please send any comments or requests for information to the AGI Government Affairs Program.

Contributed by Kasey White and David Applegate, AGI Government Affairs, and Alison Alcott, AGI/AAPG Geoscience Policy Intern

Last updated October 15, 1999


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