Fact Sheet on Data Access

In the FY 1999 Omnibus Appropriations Act, Congress directed the Office of Management and Budget to revise OMB Circular A-110 to allow the public access, through the Freedom of Information Act (FOIA), to federally funded research data. Under preexisting FOIA law, the government was not required to make available data that were not in the government's possession, even if the data were in the possession of a federally funded researcher.

The new enactment follows on more broadly stated Congressional directives to OMB relating to data access and data quality that are contained in the Paperwork Reduction Act of 1995. On February 4, 1999, OMB issued a set of proposed revisions that would permit access to published data that were used by the federal government in developing policy or rules. OMB is now reviewing the 9,000+ comments received on its proposed revisions.

Key Features of Proposed Data Access Policy

• The new policy would require researchers to publically disclose their data only after the data are published. Non-published data are not required to be disclosed.

• Persons requesting the data would be required to compensate researchers and other federal awardees for the time and expense incurred in responding to the requests.

• All existing exceptions to disclosure requirements under FOIA would continue to apply. These include exemptions for personnel and medical files, trade secrets and commercial data, and other types of sensitive information.

• OMB's revisions to its Circular would establish a framework within which other agencies would issue their own detailed regulations pertaining awards they oversee.

• The federal policy grows out of a broad consensus in favor of data access and represents an attempt to make a varying array of current data access policies more uniform.

Proposed OMB Data Access Rule

In compliance with the statute, OMB issued a proposed rule to revise Circular A-110 and requested public comments on that rule in the Federal Register on February 4, 1999 (64 Fed. Reg. 5684). Comments are due to OMB by April 5, 1999. Under the proposed rule, OMB sought to implement the statutory requirement for Data Access by amending section ___.36 of Circular A-110 in the following manner:

(c) The Federal Government has the right to (1) obtain, reproduce, publish, or otherwise use the data first produced under an award, and (2) authorize others to receive, reproduce, publish, or otherwise use such data for Federal purposes. In addition, in response to a Freedom of Information Act (FOIA) request for data relating to published research findings produced under an award that were used by the Federal Government in developing policy or rules, the Federal awarding agency shall, within a reasonable time, obtain the requested data so that they can be made available to the public through the procedures established under the FOIA. 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 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.

The statutory language for Data Access and the subsequently proposed OMB rule for its implementation are succinct. In other words, they do not provide a significant amount of detail for the implementation of those provisions. Therefore, a number of significant issues will have to be resolved during the comment period to flesh out both the OMB and agency regulations.

Questions and Answers on Detailed Aspects of the New Policy

Q: What data are subject to the proposed rule?
A: Only those data that have been published and are used in the development of federal policies or rules would be disclosed. However, OMB has not defined the term "data" and has indicated its intention to that the various agencies should define this term.

Q: Won't the new law will harm researchers by forcing them to make their data public prematurely?
A: The OMB proposed revision to Circular A-110 does not require disclosure of data before the results of the research are published.

Q: What will constitute "publication" for purposes of requiring disclosure?
A: OMB has not defined the term "publication", and this issue is expected to generate a significant amount of comment. Many researchers favor a definition that would require that only peer reviewed studies be disclosed. CRE and most trade groups generally favor a more inclusive definition.

Q: Will the new data access policy discourage private companies from engaging in joint research with federal grantees out of fear their data will be disclosed?
A: Existing FOIA exemptions against disclosure of trade secrets, financial data and other commercial information will continue to protect disclosure of such data.

Q: Won't human subjects be discouraged from participating in research if there is a chance that medical information about them will become publically available?
A: Researchers' ethical obligations to protect human subject confidentiality will be unaffected. FOIA also protects against disclosure of personal medical data.

Q: Won't researchers and federal agencies be saddled with huge new administrative costs of responding to FOIA requests?
A: No. Researchers already must good maintain data management as a condition of their federal grants, and agencies already maintain FOIA offices. Grantees' additional costs associated with responding to new FOIA requests will be reimbursed through user fees collected from requesters. In addition, the data must be disclosed to the agency only once. The agency handles subsequent requests.

Q: Will the policy apply retroactively to existing data or just to new studies?
A: OMB has not issued a decision on this point.

Data Access Implementation Status

• Representative George Brown (D-CA) has introduced a bill (H.R. 88) that would repeal the data access provisions contained in the FY 1999 Appropriations Act.

• The comment period on OMB's proposed revisions closed April 5, 1999. OMB received some 9,000 comments, with a roughly equal number of commenters favoring and opposing.

• OMB will likely issue another set of proposed revisions to Circular A-110 in a few months.

• Opponents of the new data access law have attempted to derail the OMB A-110 revision process through a proposed amendment to the FY 2000 budget bill calling for "study" of the data access issue. The Price-Walsh Amendment would impose a one-year moratorium on all work at OMB relating to the Circular A-110 revisions while the National Academy of Public Administration conducts a "study" of the issue.