II.7.1 Introduction

In addition to the requirement that all data produced under an award be made available to the public through FOIA procedures, the new law calls for payment of a "reasonable user fee" by the requester. The FY 1999 Appropriations Act provides:

[I]f 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. . . .

Given the language of this statutory mandate, we believe that OMB can establish a workable user fee program, within the existing FOIA framework, to implement the FY 1999 Appropriations Act provision.

In its Federal Register notice of February 4, 1999, OMB issued the following proposed revisions to Circular A-110:

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 the 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 (5 U.S.C. 552(a)(4)(A)).

The costs of maintaining a workable data management system arguably should be factored into the researcher's budget in connection with an award application. As with costs for good laboratory practices, for proper disposal of waste, for workplace safety, and for maintaining a clean environment, certain costs of basic data management ought to be considered a "cost of doing business."

As previously noted in section I.1.3, supra, awarding agencies already have the right to obtain all data produced under an award from grantees, and awardees are not directly compensated for their expenses incurred in providing this data to the awarding agency. The new statute does not relieve awardees of their preexisting obligation to engage in data management practices that facilitate, upon request by an agency, the transfer of data from the researcher to the government. OMB could therefore require that researchers maintain, at their own expense, data management capabilities and practices that assure to the government "the right of timely and unrestricted access". See OMB Circ. A-110 § ___.56(e).

Congress, however, clearly did not intend researchers to go uncompensated for the time and expense they incur in responding to the new FOIA requests contemplated under the FY 1999 Appropriations Act provision. The fairest reading of the new statute, therefore, is that Congress intended researchers to be reimbursed for their reasonable incremental time and expenses incurred in performing additional data retrieval, assembly, and transfer that is necessitated by FOIA (non-agency) requests. Understanding that, in some cases, data retrieval and duplication costs may not be clearly attributable to either the FOIA requester or to the agency, CRE believes that the best policy -- and that most closely aligned with congressional intent -- is to err on the side of compensation for the awardee/researcher.