Letter from Senators to OMB Director

The Honorable Jacob J. 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:

In recognition of the importance of the public's right to know, the Omnibus Consolidated and Emergency Supplemental Appropriations Act For Fiscal Year 1999 (PL 105-277) contains language that requires the Director of the Office of Management and Budget (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). Specifically, the law states:

"Provided further, that the Director of OMB amends Section _.36 of OMB Circular A-110 to require Federal awarding agencies to ensure that all data produced under and award will be made available to the public through the procedures established under the Freedom of Information Act; provided further, that if 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."

On February 4, 1999, your office published in the Federal Register a proposed revision to OMB Circular A-110 to implement this new law. In response to a request under FOIA, the proposed revision requires federal awarding agencies to obtain federally funded research data and make that data available throughout the procedures established under FOIA. The proposed revision would cover only research data from published studies that are used by the Federal Government in developing a policy or rule.

The underlying rationale for the provision rests on a fairly simple premise - that the public should be able to obtain and review research data funded by taxpayers. Moreover, experience has shown that transparency in government is a principle that has improved decisionmaking and increased the public's trust in government. The data access provision included in the Omnibus Appropriations Act is but one more important step in this direction. For too long, the public, including those directly impacted by federal rules, policies and other government findings, have been unable to access federally funded research data despite the significant impact of this data in the policymaking process. OMB must take all necessary steps to safeguard the rights of the public and ensure that a final revision to Circular A-110 is issued in a timely manner.

In light of your request for comments on the proposed revision, we would like to take this opportunity to clarify Congressional intent on several key issues and to recommend conforming changes

• Scope: The Omnibus Consolidated and Emergency Supplemental Appropriations Act For Fiscal year 1999 (PL 105-277) refers to "all" federally funded research data produced under an award. The OMB proposed revision issued on February 4, 1999 would limit the applicability to federally funded research data used by the Federal Government in developing "policy or rules". While we understand OMB's legitimate effort to encapsulate congressional intent in its proposed revision, we believe that the clear intent of the statutory language, the accompanying report language and floor debate was to make "all" federally funded research data subject to FOIA, not just that data which are used to support a federal rule or policy. At a minimum, the final revision should clarify that "policy" includes guidances, risk assessments, government surveys, and other government findings more clearly conform with Congressional intent.

• Timely Public Notification: The proposed revision to OMB Circular A-110 states that federal agencies should make available through FOIA research data "used by the Federal Government in developing policy or rules". It does not provide any information as to when in the policy or rulemaking process the public will know which studies were used. The issue is important. Unless the public can identify the research findings that are going to be used in developing a rule or policy before it is proposed, it is unlikely that the public will be able to obtain the research data through the FOIA process and review it in time to submit comments. Because of this concern, OMB should encourage agencies to: (1) notify the public of which studies will be used as early as is feasible in the rulemaking or policy development process; and (2) process all timely and relevant data requests before the public comment period on a proposed rule or policy closes. In addition, as mentioned earlier, clarification that risk assessments and other federal reports or surveys are covered independently under the proposed revision will also help by providing the public with a chance to review the underlying data supporting these government findings before they are used in a rulemaking process.

• Research Data From Published Findings: The Omnibus Appropriations Act for FY 1999 does not distinguish between data from published findings and data from pre-published findings. In contrast, OMB's proposed revision would apply only to federally funded research data from published findings is not inconsistent with the underlying statute since it relates primarily to the "timing" of the release of the data which was not addressed in the Omnibus Appropriations Act. We believe, as a general matter, that this limitation to data related to published research findings will ensure that the provision does not disrupt the research process by forcing the pre-mature release of data before the study is completed. However, we don not believe that such a limitation should apply to federally funded data that are used to support a federal rule or policy. If federally funded pre-published data or findings are used by a federal agency to support a federal rule or policy, then the final revision should ensure that such data would also be made publically available under FOIA. If the data are sufficiently sound to support a federal policy or rule, then they should be able to bear public scrutiny and disclosure at the time it they are used to support6 such rules and policies. This point is critical to ensuring that our federal rules and policies are based on good science and research findings. The final revision should also clearly define what is meant by "published" findings to include publication in a journal or the presentation of those findings to the media. This will allow the researcher maximum control as to when the data will be accessible through FOIA.

• Definition of Data: Neither the Omnibus Appropriations Act for FY 1999 or the OMB proposed revision define "data". Similarly, data are not defined in the existing OMB Circular A-110. The proposed revision should provide some guidance as to what is meant by data based on how the term is commonly used in the scientific community and the ultimate goal of this provision. At a minimum, data should include all information necessary to replicate and verify the original results and assure that the results are consistent with the data collected and evaluated under the award. This would include all tangible information or material, including but not limited to measurements, surveys and experimental details, and subsequent data treatments, including statistical analyses, obtained, performed and compiled by researchers under an award and used as the basis for reasoning, calculations, or conclu8sions.

• Privacy of Research Subjects: Exemption six of FOIA prevents the release of "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy". This exemption has been in place since 1966 and has a long history of legal precedents which suggests that it adequately protects privacy concerns. In practice, many agencies as well as private institutions have been able to release research data on a number of diverse subjects while protecting personnel privacy by "coding" the data and stripping all personal identifiers. Moreover, FOIA currently applies to a significant amount of information, including research data collected in-house, and has been shown to be effective in protecting privacy. If there is a problem that has not been as yet widely recognized, we believe the best forum to address that problem is through amendments to FOIA to assure that all research subjects involved in an intra-mural or extramural research projects will be protected.

• Intellectual Property Rights: Exemption four of FOIA prevents the disclosure of matters that are "trade secrets and commercial or financial information obtained from a person and privileged or confidential." This exclusion has been shown to be effective in protecting valid intellectual property right concerns. In addition, federal statutes prohibit the disclosure of information related to technology transfer such as patent applications. Despite the adequacy of these protections, we believe that the reference in OMB's proposed revision to research data relating to "published" findings will provide researchers additional protection by giving researcher control over the research data will be accessible through FOIA. This in turn should reduce, if not eliminate, any potential threat to intellectual property rights.

We appreciate this opportunity to clarify Congressional intent on this important provision and urge that you move forward with finalizing the proposed revision as quickly as possible. If you have any questions, please contact Kathy Casey from Senator Shelby's Office at (202 224-5744).

Sincerely,

Richard Shelby

Ben Nightborse Campbell

Trent Lott