II.8.3 Final Disclosure Determinations

OMB should revise Circular A-110 to require federal awarding agencies to make the determinations regarding which data will be withheld from public disclosure pursuant to the FOIA exemptions for national security information, commercial proprietary information, identifiable personnel or medical records, and so forth. OMB should allow the grantee an opportunity to make recommendations to the federal agency regarding which data should be withheld from disclosure pursuant to the FOIA exemptions. The final legal responsibility for determining exempt information, however, must remain with the federal agency.

Similarly, OMB should allow any private sector participant, or other participant, in the federally-funded project, who either contributed part of the database to the project or participated in developing the database, an opportunity to make recommendations to the federal agency regarding which data should be withheld from disclosure pursuant to the FOIA exemptions. Many federal agencies now employ this "reverse FOIA" procedure to allow a party who provided information to the federal government to receive notice when a FOIA request for the information is received and to provide the party's justification why the information should be withheld from public disclosure under an applicable FOIA exemption. Again, the final legal responsibility for determining which information is exempt must remain with the federal agency.

Providing an express opportunity for private industry (or others) who participate in a joint research project with a federal grantee to identify data of concern and explain why certain data should not be publicly released should help to alleviate concerns regarding improper disclosure of potentially proprietary data that is commingled in, shared in, or developed in a project that is funded in part or whole with federal grant funds.