II.6.3 "produced under an award"

The phrase "produced under an award" implicates the issue of data generated in the course of a study funded with both federal and non-federal funds. We believe that, as a practical matter, in most cases there will be no effective means of segregating by source of funding data relating to such studies. As was noted during passage of P.L. 105-277:

As is true with the existing OMB Circular A-110, the amended Circular shall apply to all Federally funded research, regardless of the level of funding or whether the award recipient is also using non-Federal funds.

144 Cong. Rec. S 12134 (Statement of Sen. Campbell). All data relating to these studies should therefore fall within the disclosure provisions of section ___.36, and the choice should be left to the researcher as to whether and how to participate in the study. CRE urges that this important point be clarified in the proposed revisions and that notice of this policy be included in the statement to awardees accompanying all federal awards.

As a condition of the award, awardees should be obligated to notify any non-awardee research partners, or any other privately funded organizations considering participating in the study, that any data such non-awardee contributes to the study or research are subject to possible public disclosure. See "Notice to Awardees at Time of Award," Section II.5, supra. OMB should take the additional affirmative step of publishing a separate Federal Register notice to alert non-government research partners of this policy. All affected organizations, both federally funded and private, would then be made aware of the choices presented to them in structuring their research programs, as well as the advantages and disadvantages of those choices.

Private research partners who elect to participate in the funding of research, but who do not provide data to the researchers in connection with the award, will be essentially unaffected by this revision. No additional data from these private entities will be subject to disclosure. Where the research partner provides data to the researcher, however, the private company should be aware that it is choosing to participate in a federally funded research program, and that, if the data are merged in the course of the research, the data shared by the private researcher may also be made publically available.

There are compelling equitable arguments for this approach. Private companies join in federally sponsored research, at least in part, in anticipation of recouping a return on their investment. The patents and other intellectual property derived from these studies often produce significant revenue for these companies.

Likewise, companies who share their own data with a federal awardee institution undertaking a federally funded study have released that data to another researching entity. To a certain degree, their expectation of an exclusive right to that data is diminished. Where agreements respecting confidential commercial data have been executed between the private entity and the awardee research institution, however, those agreements should be honored wherever possible. The private entity should bear the burden of assuring that any shared data can be reasonably segregated. OMB should therefore institute procedures similar to "reverse FOIA" safeguards to assure that, in such cases, private entities whose data are affected by this policy have an opportunity to challenge the release of the information. Ultimately, however, the decision to engage in the federally funded project belongs to the researcher, and private participants in the research should bear both the costs of safeguarding their preexisting data and the risks that some of that data may be disclosed.

This approach is fairly derived from the language of the FY 1999 Appropriations Act. Had Congress intended the public access provisions of the law to apply only to "data first produced under an award," it would have said so. The term "first produced" appears in the current version of Circular A-110, and yet Congress chose not to repeat the phrase in the new law. Instead, the law requires that "all data produced under an award" -- either from original observation or by reuse in a later, publically funded study -- be subject to public disclosure.