Letter from four Senators to OMB Director

Mr. Jacob Lew
Director
Office of Management and Budget
Room 252
Old Executive Office Building
725 17th Street, N.W.
Washington, D.C. 20503

Dear Mr. Lew:

On August 11, 1999, your office published in the Federal Register clarifying changes to its February 4, 1999 proposed revision to OMB Circular A-110 to provide the public access to federally funded research data. The original OMB proposal and the clarifying changes to that proposal seek to implement a public-right-to-know provision that was included in the Omnibus Appropriations Act for Fiscal Year 1999 (PL 105-277). The new law requires OMB to amend OMB Circular A-110 to require all data produced under an award to be made available through the procedures established under the Freedom of Information Act (FOIA). In response to your request for comments on these clarifying changes, we would like to take this opportunity to once again explain Congressional intent on several key issues and to request conforming changes.

While we appreciate your efforts to move expeditiously to finalize the proposed revision, the August 11th proposal represents a significant retreat from OMB's original February 4th proposal as to render the provision potentially meaningless in its ability to improve the public's access to federally funded research data. The severe limitations included in the clarifying changes to the proposal are contrary to the plain meaning of the statute and Congress's intent in passing the law. Unless significant changes are made to the proposed revision, the final revision is unlikely to provide any public accountability for the significant taxpayer funds that are spent on research in this country and will do little to improve the quality of research or the public's participation in the federal policymaking process. Our major concerns with the proposed revision included in the August 11, 1999 Federal Register notice include the following:

• Scope: The Omnibus Appropriations Act for Fiscal Year 1999 would allow the public access to "all" federally funded research data produced under an award through the Freedom of Information Act. Despite the clear meaning of the statute, your February 4th proposal significantly narrowed the applicability of this provision to federally funded research data used by the federal government in developing "policy or rules." without defining what is meant by "policy". In the most recent notice on clarifying changes to the proposal, you now state that the provision will only apply to federally funded research data that are cited in support of regulations for which notice and comment is required under 5 U.S.C. 553. The new draft proposal also seeks public comment on whether the final revision should be limited to just major rules where a regulation meets a $100 million impact threshold.

  While the February 4th proposal relied in part on some of the legislative rationale supporting the provision to narrow the rule to research data "used by the Federal Government in developing policy and rules," there is no statutory basis for any of the limitations proposed by OMB in either the February 4th or August 11th proposals. In addition, applying the provision only to rulemakings for which notice and comment is required would prevent the public from accessing federally funded research data that are used to shape other agency policies, including agency guidance, risk assessments, surveys, administrative orders, and other federal actions that can dramatically impact the public. As taxpayers and as those who are directly impacted by many policies that are not the subject of formal rulemakings, the public should have a right to access all federally funded research data subject to the procedures and limitations included in the Freedom of Information Act once the research findings have been published or cited by the federal government in a federal action.

  Your proposal also asks for comment on further restricting disclosure of federal research data to "major" rules that cost $100 million dollars or more. We believe that this restriction is also completely unjustified and unsupported by the law. Our understanding is that "major" rules represent only a small fragment of the regulatory activity of the government. Such a small percentage, while certainly easier for OMB and the agencies to administer, does not support the kind of broad access that we sought to achieve under the law. The much broader principles of transparency and accountability in government would not support such a limited approach. We, therefore, would strongly oppose an arbitrary dollar threshold that attempts to distinguish between "major" and "minor" rules.

  In addition, we are concerned that new restrictive interpretations discussed above would decrease rather than increase greater public access to research data, by possibly encouraging agencies to engage in less formal rulemaking or policy actions in order to avoid triggering the requirements of this rule.

• Timing of Data Release: OMB's decision to narrow the scope of the proposed revision to only research data cited by the federal government in support of regulations creates a significant problem that undermines the effectiveness of the provision even for regulations. Under the August 11th proposal, the public in most instances will not know what research findings a regulatory agency has cited in support of a rule until the rule has been proposed. Given that regulatory agencies traditionally provide only 30 or 60-day comment periods, there will be insufficient time for the public to file a FOIA request, wait for the Agency to process that request (including obtaining the information from the award recipient) and review the data before the public comment period has closed. This means that for most federal rules covered by the proposed revision, the public will be precluded from using the information to comment on regulations. Providing the data after rules have been finalized will only fuel litigation.

  This outcome is in direct conflict with Congressional intent and could render the new law meaningless. It is difficult to envision how the OMB proposed revision will help to either improve the scientific basis of federal policies and actions or allow the public greater opportunity to participate in the federal policymaking process if information is only provided after the fact. Unless the public has access on a timely basis to the data supporting new research findings, there will be insufficient time for the public and other scientists to adequately review and replicate the results if necessary before it is used to support a federal action.

  The obvious solution to this problem is not to delay regulations until the data are released, but to follow the clear intent of the law by allowing the public access to all federally funded research data through the procedures and exemptions included in FOIA once the data has been published or cited by the federal government in support of a federal action. Allowing the public access to all federally funded research data in this manner would also eliminate the problem cited by OMB in its explanatory statement determining what studies the government has "used" in "developing" an agency action.

  In addition, a broader implementation ensures that agencies would not avoid the more formal and costly rulemaking procedure in favor of less public agency "policies," "criteria" or "guidance." We believe this is a very serious concern in light of the various regulatory justification and analysis requirements that already, in many cases, encourage agencies to avoid the formal rulemaking framework. Additional disclosure and justification requirements would no doubt influence agencies in how they engage in rulemaking and policymaking decisions.

• The Proposed Revision Should Rely on the FOIA Exemptions: Under the August 11th proposed revision, only information that meets the definition of research data would be subject to evaluation under FOIA for release. Subsection d(2)(i) of the proposed revision defines research data to exclude business, commercial and personal information that is similar to the information currently exempted under Section 552 (b)(4) and (b)(6) of the Freedom of Information Act. While this may seem an innocent restatement of the FOIA exemptions, it creates a troubling outcome by allowing researchers and Agency officials broad discretion to interpret these new exemptions outside of FOIA and the case law that has evolved under FOIA. Given that terms such as privacy and confidential business information are highly subjective, the results could be disastrous for the public's ability to access important information. For instance, the main reason provided by research institutions for not releasing the raw data supporting the particulate matter epidemiology studies is the need to protect the privacy of the research subjects despite the fact that personal identifiers could be redacted.

  The OMB proposed revision should rely on the FOIA exemptions and the case law which have evolved over time in applying these exemptions rather than allowing ad-hoc and inconsistent decisionmaking on important issues such as protecting privacy within the federal government. Under such a process, the public would have no legal protections if disputes arose.

  Furthermore, defining "research data" to exclude this information at the outset is inconsistent with the plain meaning of the law. The intent of the law was clearly to make research data available through the legal framework of FOIA, most important of which includes the traditional analysis and application of the FOIA exemptions. The revision, as currently drafted, would seriously alter the FOIA analysis undertaken by the agencies in reviewing FOIA requests by carving out data that would no longer be considered in the analysis. We believe it is unnecessary to define "research data" in such a narrow way in order to ensure that the exemptions of FOIA adequately address the concerns raised about medical privacy, commercial information, and trade secrets.

• Researchers Should Not be Given FOIA Responsibilities: In addition to providing new exclusions not contained in FOIA, the August 11th proposal also proposes to allow award recipients to decide how these new exclusions on privacy and commercial/businesses information would be applied to their own data before providing that data to the awarding agency. The awarding agency would retain its right to ask for additional information. The proposal thereby leaves the primary decision as to what data should be released to the researcher who has a self-interest not to release the data. Given that the exclusions proposed in the revision pertain to the definition of research data and are not rooted in FOIA, the public would have questionable legal rights to contest the decisions made by the award recipient. The proposal provides no information on what steps the requester can take if a dispute arises. For these reasons, we would strongly discourage you from implementing such a scheme in your final revision.

  We do believe, however, that it would not be unreasonable to allow researchers to make an initial claim of privilege under existing FOIA exemptions in complying with a FOIA request, if the final revision did not attempt to narrowly define "research data" to carve out data from FOIA analysis and application and if agencies and the requester retained their right under FOIA to contest the researcher's claim. This, we believe, would allow researchers to identify certain data which they believe should be protected under FOIA while maintaining the agencies' existing rights to obtain all data produced under awards and protecting the public's right to access all information that is releasable under FOIA case law and process.

• Data Which May be Copyrighted Should Not Be Excluded: Subsection (d)(2)(i) also excludes from the definition of research data information "which may be copyrighted". Since almost any information may be copyrighted, this exemption would on its face eviscerate the proposal by allowing researchers and agency officials a reason for denying any FOIA request for research data. This exclusion could potentially eat the entire rule. Furthermore, this exclusion has no basis in FOIA and would significantly undermine the entire purpose of the law.

These weaknesses are serious and raise fundamental questions as to whether the public will be able to obtain any meaningful information on a consistent basis even when applied to the narrower area of regulations. We strongly support your efforts to craft a workable and reasonable rule that supports the scientific process while ensuring greater transparency and accountability in government by the end of September. We believe our comments above would achieve this purpose and encourage you to incorporate them in your final rule. We appreciate this opportunity to again clarify Congressional intent. If you have any questions, please feel free to contact us.

Sincerely,

Senator Ben Nighthorse Campbell

Senator Richard Shelby

Senator Trent Lott

Senator Phil Gramm