COMMENT BY: Congressman George E. Brown, Jr. (D-CA)
SUBJECT:Against proposed revision to OMB Circular A-110
DATE:April 2, 1999

Dear Mr. Charney:

I am writing to express my concerns about the Office of Management and Budget’s (OMB) proposed revision of OMB Circular A-110 which appears in the February 4, 1999 issue of the Federal Register. Since I am co-sponsor of a bill, H.R. 88, to repeal the underlying statutory requirement directing OMB to embark on this revision, it is obvious that I do not consider any proposed revision that relies upon the use of the Freedom of Information Act (FOIA) to compel access to the data of non-federal entities to be acceptable.

The process through which this change has been compelled is deeply flawed. Before providing a constructive solution to a problem, we must have a clear definition of its nature and scope. We must also provide a forum for designing a solution that permits the full participation of all interested parties. The development of the legislative provision under which you are laboring involved neither of these essential activities. No clear definition of the problem or problems associated with data sharing was articulated, nor were hearings held in either the Senate or the House of Representatives to examine the myriad issues associated with extending the reach of FOIA to non-federal entities. Congress should not have proposed, and the Administration should not have agreed, to make a change of this magnitude without consulting federal funding agencies and the grant recipient community. The post-legislative consultation session now being conducted through this notice-and-comment procedure is an empty exercise given that the outcome is pre-determined. Regardless of the number and substance of comments that may be received indicating the folly of pursuing this course, we will still be left with only one outcome - the use of FOIA procedures to access researchers’ data.

In its proposed revision, OMB has attempted to address some of the concerns raised in early letters from the scientific community and from Members of Congress. Unfortunately, I seriously doubt whether any OMB revision which narrows the language contained in Pub. L. 105-277 would withstand a court challenge. Any FOIA requester who felt entitled to more information than they had received or who was denied access to information prior to its formal publication in a peer-reviewed journal could take their grievance to the courts where the broad language of the statute likely will prevail.

Even if OMB’s proposed language withstood a court challenge, the mechanism proposed is still fundamentally flawed. However well-intentioned, your efforts have failed in a number of important areas: protecting confidentiality of human research subjects; protecting intellectual property rights; providing safeguards to prevent the use of FOIA requests for harassment purposes; and addressing increased administrative and legal costs for universities and individual researchers. In the attempt to more narrowly define the scope of research and the time period during which researchers would be subject to compliance with FOIA requests, OMB has created additional legal ambiguities.

The terms "data" and "publication" are not defined in either Pub. L. 105-277 or in your February 4 proposal. Although OMB or the federal funding Agencies may later define the term "data", the fact that it remains undefined in the statutory language ensures that any dispute on this point must ultimately be resolved in the courts. Cases that have been pursued at the state level through state open-record laws and other FOIA-Iike statutes have established precedents for very broad definitions of data that go well beyond what a researcher may define by this term and have included such items as laboratory notebooks, telephone logs, electronic mail, and many other forms of informal and formal notes and communications.

While your proposal may comfort researchers who believe that their data would only be subject to a FOIA request AFTER they had published in a peer-reviewed journal, the language you have used creates its own set of difficulties. Researchers routinely present preliminary results at meetings where only an abstract is published to summarize the presentation. Would this type of communication fall under a legal definition of publication? There are numerous other venues where on-going research projects are reported in a general fashion. Would inclusion of information about a study in publications such as graduate school bulletins and annual reports fall under the legal definition of publication? How about university web sites listing faculty and staff and descriptions of their on-going research projects? If research institutions and their researchers anticipate that informal publications of these types could trigger a FOIA request, it is probable they will cut back on these forms of communication. The result would be LESS information sharing, not more.

Even if OMB’s definition of published information (an article in a refereed journal) withstood court challenge, problems remain with maintaining the confidentiality of human subjects, discouraging the use of FOIA requests for harassment purposes, and safe-guarding the intellectual property of researchers in non-profit institutions and of their private sector partners.

Agreements between human subjects and researchers to maintain confidentiality of personal records are made with the understanding that the terms of the agreement extend in perpetuity. The agreement does not and cannot expire upon publication of the study if we are to expect individuaIs to continue to volunteer to participate in medical and behavioral research. Although FOIA contains exemptions for medical, personnel, and other types of information, the mere fact that a researcher could be compelled to convert all of a volunteer’s personal information into official US government records will discourage participation of research subjects. The non-federal researcher would be in no position to guarantee confidentiality to the volunteer because it is the federal funding agency - not the researcher - which would be responsible for determining which information would be redacted under FOIA exemptions. I would also point out that FOIA exemptions do not apply either to the sharing of federal records among agencies and Departments of the federal government or to requests to federal agencies from Congress.

OMB’s attempt to restrict FOIA requests to "published research findings...that were used by the federal government in developing policy or rules" does not limit the use of FOIA requests to harass researchers; in fact, it encourages this misuse of FOIA. As many persons who favor a more limited government are quick to point out, the federal government develops policies and rules in many areas - from policies regarding the eligibility of treatment with particular drugs or medical devices for Medicaid and Medicare reimbursement to the determination of safety standards for nuclear power plant operations. There is little research, if any, that would fail to have some bearing on federal policy. The research done on important areas of policy-making - health, environment, workplace safety, product safety and efficacy, illegal and/or undesirable social behaviors - are precisely the types of research that will draw the attention of vested interests on all sides of these contentious debates.

The protection of intellectual property is a fundamental national interest. The patent system was created in Article I, Section 8, Clause 8 of our Constitution. Since the early 1980s we have promoted cooperative research and development between the public and private sectors through the Bayh-Dole Act (Pub. L. 96-517) and the Stevenson-Wydler Technology Innovation Act (Pub. L. 96-480). The implicit declaration that "research results and underlying data" produced under a federal grant are official agency records presents a direct contradiction to the policies in these laws protecting ownership of intellectual property and fostering public-private R&D collaborations. The proposed revision to OMB Circular A-110 incorrectly assumes that all materials and all intellectual property generated under federal grants are the property of the federal government.

Further, OMB’s revision would eliminate the distinction between a grant and a contract. A grant is provided to support an activity we deem to be in the public interest; a contract is used for procurement. The proposed revision essentially turns all federal grants into procurement contracts with terms that indicate federal ownership of everything associated with the grant. This change would eliminate the traditional practice followed over the past five decades, overturn a Supreme Court ruling that data produced under federal grants are NOT official government records, and call into question the ability of researchers receiving federal grants to control and patent their intellectual property. We would be putting at risk a whole range of public-private partnerships which facilitate the commercialization of new products and technologies and provide a mechanism for holding down the increasing cost of research and development for individual firms and industries.

Public and private funds to support these collaborative activities are co-mingled, thus exposing all information within a project to the requirement mandated by OMB’s proposed change to the Circular. Since the Circular applies to non-profit research organizations, the exemptions granted under FOIA for proprietary information may not strictly apply to the information generated under federal grants. At a minimum, the ambiguity created in the status of intellectual property associated with federal grants will generate additional legal actions to define the relationship between the receipt of federal funds and the ownership of data and information produced with those funds.

Although OMB’s proposal provides authority for the federal funding agency to charge a requester" a reasonable fee equaling the full incremental cost of obtaining the data," there is no mechanism specified for transferring those fees to the grant recipient or host institution which incurred the cost of compliance. It is also unclear whether the funding agency would receive funding for the costs incurred in obtaining the data. Under current practice FOIA fees go directly to the Treasury and are not returned to the agency or Department that processed the FOIA request. In any case, there are additional costs to be considered which both funding agencies and grant recipients will incur if this change is implemented. New administrative procedures will have to be put in place by both grant recipients and funding agencies to comply with the proposed change to Circular A-110. Heretofore, federal agencies have responded only to requests for information in their possession. Funding agencies will need to expand their record-keeping procedures for all grants to include much more detailed information than is currently kept for each grant. Grant recipients have no experience meeting the requirements of a FOIA request, and will need to expand their record-keeping for all grants as will individual researchers. Since overhead costs are capped, the upshot of all these new administrative burdens will be to redirect resources from research into administration and record-keeping.

The legal ambiguities I have referred to above will undoubtedly spawn a number of court cases and other legal actions as disputes arise among FOIA requesters, grant recipients, the subcontractors of grant recipients, research subjects, and federal funding agencies. Clearly the legal costs for universities, hospitals, and non-profit research organizations will increase if the FOIA path is followed. There is no mechanism available to OMB for estimating or off-setting these increased legal costs. If the proposed change is implemented, I believe the decrease in productive scientific research will be more than offset by an increase in legal research.

If we aim to facilitate expanded access to federally funded, scientific information we will fall far short of our goal by pursuing me "one-size-fits-none" approach OMB has been mandated to use in Pub. L. 105-277. And without a more systematic analysis, I remain skeptical about the alleged widespread problems in areas of data sharing and data access. Assertions such as this are contradicted by the pre-eminent position our nation holds in all scientific fields, a position we could not have attained without open access to information. In cases where such problems may exist, I believe that we will be able to find more equitable approaches to these problems that would respect intellectual property rights and confidentiality agreements and would accommodate the needs of different disciplines.

I continue to believe that a repeal of the requirement in P. L. 105-277 is necessary if we are to find these more appropriate approaches and continue to maintain our pre-eminent status in science and technology through realization of the benefits of government-sponsored research. I urge the Administrati