COMMENT BY: American Association of Engineering Societies
SUBJECT:Against proposed revision to OMB Circular A-110
DATE:MArch 31, 1999

Dear Mr. Charney:

The Engineers Public Policy Council of the American Association of Engineering Societies, representing more than one million U.S. engineers, supports significant alterations to, or if necessary repeal of, the legislation requiring Office of Management and Budget to modify Circular A-110. In the interim, EPPC wishes to submit its comments about the changes proposed by OMB.

The United States Supreme Court in Forsham v. Harris, 445 U.S. 169 (1980) held that data generated by a privately controlled organization that has received grants from a federal agency are not "agency records" subject to public disclosure under FOIA. The legislation enacted in Public Law 105-277 overturns this decision and makes this data "agency record." EPPC supports the public’s ability to access information and data regarding federal funded research programs. However, this must be balanced with privacy rights and intellectual property rights. We believe that the proposed changes will have many unintended consequences that will be harmful to the health and independence of U.S. research endeavors.

We believe that it would be appropriate for the National Academy of Engineering, the National Academy of Sciences, and the Institute of Medicine to undertake a study to set in place sound mechanisms for data sharing, especially in light of new technologies. It is also imperative that the engineering and science community be more involved in the development of data sharing mechanisms.

EPPC believes that the proposed changes will make it all too easy for the inadvertent release of private information, intellectual property and trade secrets. The proposed changes to Circular A- 110 require the researcher to turn over all "data" to the funding agency, and the agency in turn will decide what is appropriate for release and what is exempt under FOIA. Further, as OMB does not define "data" this is left to the discretion of the agency, potentially setting up dozens of standards by which information will be released. We believe the sheer volume of data will threaten intellectual property and privacy rights.

EPPC is concerned that the costs of these requests could easily become overwhelming to researchers and divert their resources, time and energy from performing research. Under current practice. agencies do not recover the costs of FOIA requests; the fees collected go directly to the Treasury, not the agency. OMB’s proposed revisions do not provide a mechanism for recouping of cost, either to the agency or the research institution.

The proposed changes also do not define what length of time a grant recipient must maintain their records; in fact, the changes seem to indicate this would be done in perpetuity. Such an administrative burden on a research organization is again very costly.

OMB has also left the term "publication" undefined. At which point is a research project considered to have been published? Many researchers present their projects at professional conferences to inform their peers about their efforts not the results. If at first mention of the research project a request can be made, the research will be hampered. EPPC believes that OMB should redefine publication as "publication in a peer-reviewed journal," which will indicate that the data used in the research project has been subjected to a thorough review by knowledge peers.

Finally, EPPC is concerned that these changes will have a chilling effect on industry-universitygovernment partnerships. These partnership efforts are vital to the future health and well being of the nation’s research endeavors, economy, and security. If out of concern for trade secrets an industry partner drops support for a university research program, or a university is unable to maintain adequate archives of research projects, the results will be conspicuous. The advancement of our knowledge and technology will slow and most likely causing detrimental effects on the economy.

Sincerely,

Dr. Theodore T. Saito
1999 EPPC Chair