II.9.8 Retroactivity

Criticism: It is unclear whether the revised section ___.36 would apply retroactively. Would the new policy apply to data already in existence? If the revisions are applied retroactively, then proposed new mechanisms for notification to researchers during the award process, for "reverse FOIA" challenges, and so forth would not overcome the unfairness of requiring public disclosure of data produced under the prior award structure. If the revisions are not applied retroactively, then how are existing data (not required to be disclosed) to be distinguished from new data to which the revised Circular applies?

Response: One possible approach might be to grandfather in a disclosure exemption for data that are generated or gathered in connection with awards already made. Another procedure might be to create an exemption for data created prior to a given date. The reverse FOIA disclosure challenge protections also could be applied to all otherwise applicable data, regardless of whether such data were produced before or after the revisions to section ___.36 became effective.

CRE favors retroactive application of the revisions. Critical science-based regulatory issues are now being decided, and CRE is aware of several organizations that have attempted to obtain existing data upon which the government currently is basing, or contemplating revisions to, federal policy. Retroactive application is consistent with the statutory language which states that "all data produced under an award" shall be made publically available through FOIA, without limitation as to when the data were produced.

CRE proposes, however, that, in the event OMB determines that retroactive application of the new data access policy would create unworkable procedural or other problems, OMB should direct that, on an interim basis only, the rule will be applied only to future awards. OMB's right to issue new revisions to Circular A-110 will not expire following the reissuance of the Circular on an interim basis, and the agency should solicit -- at some future point -- notice and request for comment on how the policy may be made applicable to existing data. If OMB does issue such an interim revision, we further suggest that, while such a revised Circular is in effect, agencies be directed to provide access to data in a manner consistent with all access policies now in effect, including the many policies allowing broad public data access that are discussed elsewhere in these comments. See Section I.3, supra. OMB should also instruct agencies that they are to refrain from developing policies or rules on the basis of studies for which no data are available.