In the FY 1999 Omnibus Appropriations Act, Congress directed the Office of Management and Budget to revise OMB Circular A-110 to allow the public access, through the Freedom of Information Act (FOIA), to federally funded research data. Under preexisting FOIA law, the government was not required to make available data that were not in the government's possession, even if the data were in the possession of a federally funded researcher.
The new enactment follows on more broadly stated Congressional directives to OMB relating to data access and data quality that are contained in the Paperwork Reduction Act of 1995. On February 4, 1999, OMB issued a set of proposed revisions that would permit access to published data that were used by the federal government in developing policy or rules. OMB is now reviewing the 9,000+ comments received on its proposed revisions.
Key Features of Proposed Data Access Policy
Proposed OMB Data Access Rule
In compliance with the statute, OMB issued a proposed rule to revise Circular A-110 and requested public comments on that rule in the Federal Register on February 4, 1999 (64 Fed. Reg. 5684). Comments are due to OMB by April 5, 1999. Under the proposed rule, OMB sought to implement the statutory requirement for Data Access by amending section ___.36 of Circular A-110 in the following manner:
(c) The Federal Government has the right to (1) obtain, reproduce, publish, or otherwise use the data first produced under an award, and (2) authorize others to receive, reproduce, publish, or otherwise use such data for Federal purposes. In addition, in response to a Freedom of Information Act (FOIA) request for data relating to published research findings produced under an award that were used by the Federal Government in developing policy or rules, the Federal awarding agency shall, within a reasonable time, obtain the requested data so that they can be made available to the public through the procedures established under the FOIA. If the Federal awarding agency obtains the data solely in response to a FOIA request, the agency may charge the requester a reasonable fee equaling the full incremental cost of obtaining the data. This fee should reflect costs incurred by the agency, the recipient, and applicable subrecipients. This fee is in addition to any fees the agency may assess under the FOIA.
The statutory language for Data Access and the subsequently proposed OMB rule for its implementation are succinct. In other words, they do not provide a significant amount of detail for the implementation of those provisions. Therefore, a number of significant issues will have to be resolved during the comment period to flesh out both the OMB and agency regulations.
Questions and Answers on Detailed Aspects of the New Policy
Q: What data are subject to the proposed rule?
Q: Won't the new law will harm researchers by forcing them to make their data public prematurely?
Q: What will constitute "publication" for purposes of requiring disclosure?
Q: Will the new data access policy discourage private companies from engaging in joint research with federal grantees out of fear their data will be disclosed?
Q: Won't human subjects be discouraged from participating in research if there is a chance that medical information about them will become publically available?
Q: Won't researchers and federal agencies be saddled with huge new administrative costs of responding to FOIA requests?
Q: Will the policy apply retroactively to existing data or just to new studies?
Data Access Implementation Status