I.1.1 FY 1999 Omnibus Appropriations Act

The specific statutory authority and congressional directive to revise Circular A-110 is contained in Title III of the Treasury and General Government Appropriations Act, 1999 (the "Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999") (P.L. 105-277, div. A, § 101(h)), 105th Cong., 2d Sess. (1998), 112 Stat. 2681 et seq., reprinted in 1999 U.S.C.C.A.N. No. 11, at pp. 566-67 ("FY 1999 Appropriations Act"). This statute represents the most recent and pointed mandate from Congress that OMB permit appropriate public access to federal research data. The law provides:

"Office of Management and Budget Salaries and Expenses . . . Provided further, That the Director of OMB amends Section ___.36 of OMB Circular A-110 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 the Freedom of Information Act: Provided further, That if the agency obtaining the data does so solely at the request of a private party, the agency may authorize a reasonable user fee equaling the incremental cost of obtaining the data: . . . ."

Senate Majority Leader Trent Lott (R-MS), Sen. Richard Shelby (R-AL) and Sen. Ben Nighthorse Campbell (R-CO) made floor statements supporting the provision. Senator Lott stated that the provision requires "Federal awarding agencies to ensure that all research results, including underlying research data, funded by the Federal Government . . .[that is] used by the Federal Government in developing policy and rules" are to be made available through FOIA. The Conference Report adds, "The provision applies to all Federally funded research data. . . ." (144 Cong. Rec. S 12134, Oct. 9, 1998). The provision is intended to apply to all federally funded research, regardless of the level of funding or whether the award recipient is also using non-federal funds. Id. (Statement of Sen. Campbell).

The new legislation, which was signed into law in November 1998, requires OMB to make available to the public upon request certain materials that previously did not fall within the scope of the Freedom of Information Act. The data access law does not expand the scope of information that the government itself is entitled to obtain from the federal awardees, however. The government already has certain property and other rights to obtain materials relating to federally funded research, and the new law does not expand those rights. See OMB Circ. A-110 § ___.36(c).

Likewise, under FOIA, materials produced under a federal award that were already in the government's possession at the time the FOIA request was received (and that were not otherwise exempt from disclosure) were already available to the public prior to the FY 1999 Act. The new law expands the scope of FOIA only to the extent that it imposes upon the government an obligation to obtain data that it previously had an unexercised right to possess. The new law therefore overturns the case of Forsham v. Harris, 445 U.S. 169 (1980), and similar precedents that held that data generated by federal awardees are not "agency records" and need not be disclosed pursuant to a FOIA request, so long as the data have not been "obtained" by the agency.