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COMMENT BY:
The Reporters Committee for Freedom of the Press
Dear Mr. Charney: Enclosed are comments on the proposed revision of OMB Circular A-110, "Uniform Administrative Requirements for Grants and Agreements With Institutions of Higher Education, Hospitals and Other Non-Profit Organizations" submitted by our executive director Jane E. Kirtley and myself on behalf of the Reporters Committee for Freedom of the Press. We greatly appreciate the opportunity to comment on this proposal. Sincerely,
Rebecca Daugherty In re: OMB Circular A-11O: Proposals for ) "Uniform Administrative Requirements for ) Grants And Agreements With Institutions ) of Higher Education, Hospitals and Other ) Won-Profit Organizations" ) COMMENTS OF THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS The Reporters Committee for Freedom of the Press submits these comments in response to the Office of Management and Budget's invitation for comments on its proposed revision of Circular A-110 to incorporate the 1998 amendment to the Freedom of Information Act making "all data" produced under federal grant subject to the FOI Act. Announcement of the proposal was published February 4, 1999, at 64 Fed Reg. 5684. The Reporters Committee is a voluntary, unincorporated association established in 1970 by news editors and reporters to defend the First Amendment and freedom of information rights of the print and broadcast media. The Reporters Committee publishes a quarterly magazine, The News Media & The Law, as well as a bi-weekly newsletter, News Media Update. We produce several Freedom of Information publications including guides to using the federal FOI Act and each of the open records laws in the 50 states and the District of Columbia, as well as a guide to state laws on access to electronic records. The Reporters Committee also sponsors, as a special project, the FOI Service Center, which advises reporters on access to governmental records and proceedings. Purpose of these Reporters Committee's Comments The Reporters Committee welcomes the statutory requirement for greater openness of research data, believing that it will enable the citizenry to examine the factual underpinnings of some government decision-making and make a better assessment of its own views regarding those decisions. The greater openness will increase journalists' ability to report accurately on the processes of government. These comments are written to assure OMB that we wholeheartedly support guidance that will open up these records to the public, and for other purposes. We would also ask OMB to take the further step of requiring "all data" by contractors as well as grantees to be subject to the FOI Act. As experienced users of the FOI Act, we would like OMB to resist pressures from other commenters to avoid or limit the mandates of this new law. We are confident that law will not lead to too much disclosure, particularly the kinds of disclosure that we have seen described. Agencies regularly invoke exemptions that would protect information critics fear would be released. They use the FOI Act's privacy exemptions to protect even the most mundane about individuals. They also make liberal use of the exemption to protect against commercial harm. We also would like to share with OMB our view that the new law is in no respect unusual and that it mirrors the statutory and case law in state governments. Finally, we urge OMB not to set out a different system of fee benefits and waivers for this information. OMB should extend the disclosure rule to contractors Over the years we have received many calls on our hotline from reporters who are unable to obtain government-funded, government-used information because the agency which should control the information has elected to leave it in the hands of contractors, out of reach of the FOI Act. Although the new law mentions grantees, we see no legitimate distinction between the public's need for information developed by contractors for government use and information developed by grantees for government use. We note that several years ago the Department of Energy by regulation extended the reach of the FOI Act to many of its contractors in an effort to keep the public better informed of its activities. That extension has worked well. OMB should similarly incorporate contractor records into its information policy articulated in Circular A-110. OMB Should Resist Efforts to Nullify the New Law We have seen considerable criticism of the new law from legislators and from other commenters who contend that subjecting private entities who perform work for the government to the same FOI Act standards applied to the government itself will somehow bring about release of information that they regard as sensitive. We very much doubt that. There is a vast difference between making information public and merely making it subject to the federal Freedom of Information Act. Although there are only nine exemptions to the FOI Act, the federal government has been enterprising and expansive in its use of them. The Reporters Committee welcomes the prospect that requesters will now have access to information that was previously of f limits, not because of its content or purpose but because of its location. However, we are confident that federal agencies will carefully seek to identify any negative consequences that might occur from release and invoke applicable exemptions to avoid them. From our experience, we do not believe the public will receive too much information. The government has vast experience in invoking exemptions. We do not accept the criticism of this new law that its application to grantees will result in any loss of privacy. The federal government has been simply masterful in its ever- expanding use of the privacy exemptions to withhold information about individuals. If information about an individual does not reveal something about federal government activities, its release is not even considered. For instance, with the full and explicit blessing of the U.S. Supreme Court, the federal government even uses the FOI Act's privacy exemptions to protect from disclosure public record information about convicted felons, ostensibly to protect their privacy interests in avoiding having their names linked with their own criminal history records. The U.S. Supreme Court has said that, to protect privacy, the government need not reveal names in the work forces of its contractors and subcontractors to union representatives, even though private entities are required to make their information available under the Davis-Bacon Act. The high court has also specifically allowed the government to use these exemptions to keep secret the names of the persons it deports. Federal agencies use the privacy exemption to deny public access to the names of persons who default on million dollar loans from the Farmers Home Administration, to refuse to name prisoners in federal institutions, to deny release of names of individual recipients of government benefits or to reveal myriad other details which might give information about an individual. Of late the government has used the "mosaic" theory to deny access to records containing information that must be used with other information before an individual whose privacy is being protected can even be identified. We do not fear for a moment that the government will forget to use the privacy exemptions to protect intimate, personal details regarding the subjects of research studies. Similarly the federal government makes strong use of exemptions to protect the commercial and financial information submitted by persons outside the government to protect against competitive harm and also to avoid release of "voluntarily" submitted information. Researchers should be confident that even though grantees may provide the government agencies with information purchased at public expense, the agencies will nonetheless take strong measures to protect any competitive interest the grantees have. The new law is similar to the law of many states Except for its limited application to certain kinds of grantees, the amendment is very typical of open government law in other jurisdictions. Every state has an open government law. Many of these state laws apply to privately-held records if the private group in control of them either receives public funds or performs a public function. Below are some examples of state statutory provisions in South Carolina, Florida, Iowa, Delaware and Alaska. Other states have similar laws. South Carolina changed its law in 1991 to ensure that a body supported in whole or in part by public funds or one that expends public funds is subject to the act. S.C. Code Ann. (1991) Sec.30-4-20(a). Its high court had already ordered a private research foundation to make its records available, and those records showed that it had made tens of thousands of dollars available to the state university president. In Florida, the public records law may apply to non-governmental bodies such as charitable organizations or firms contracting with the government, which receive public funds or benefits, if the non-governmental body is "acting on behalf of any public agency." Fla. Stat. Sec. 119.011(2) (1995). In Iowa, "Governmental bodies shall not prevent the examination or copying of a public record by contracting with a non-government body to perform any of its duties or functions." Iowa Code Sec. 22.2(2) (1991). In Delaware, the Act covers bodies "established. appointed. . . or otherwise empowered by any state governmental entity" which (i) are supported in whole or in part by any public funds; (ii) expend or disburse any public funds, including grants, gifts, or other similar disbursal and distributions; or (iii) are impliedly or specifically charged by any other public official, body or agency to advise or to make reports, investigations or recommendations. 29 Del. C. Sec. 10002(a). (The Act exempts the University of Delaware except that documents relating to public fund expenditures are "public records.") In Alaska, records that are "developed or received. . . by a public contractor for a public agency" are now public records available for inspection and copying as a result of 1990 amendments to the public records act. ASO9.25.220(6) Even where the statute does not specifically address applicability to entities that receive government funds, many state courts have found that the state's open records law may apply to privately-held records used by government. For example: The Ohio Supreme Court applied that state's law to require public disclosure of records possessed, received or created by private entities to which public offices had delegated the performance of public functions. State, ex. .rel. Fostoria Daily Review Co. v. Fostoria Hospital Ass 'n 531 N.E. 2d 313 (1988). In Georgia, any entity, business or organization that "serves a public function," including any non-profit entity is subject to the Act's requirements, Northwest Ga. Health Sys. V. Times-Journal, 461 S.E. 2d 297 (1995). In New York, non-governmental bodies which act on behalf of governmental bodies or which perform an essential public service are subject to FOIL (Freedom of Information Law). Westchester Rockland Newspapers v. Kimball, 408 N.E. 2d 904 (1980). In Arkansas, a private entity that receives public funds for services rendered to a government agency is subject to FOIA when the services could have been performed by public employees. Swaney v. Tilford, 898 S.W. 2d 462 (1995); City of Fayetteville V. Edmark, 801 S.W.2d 275 (1990). Fees should be levied according to existing fee schedules The new law provides for collection of "reasonable" fees. We believe that OMB should adopt the existing fee recommendations FOI dating from March 17, 1987, rather than make additional recommendations which may be confusing both to the FOI office] and specialists who will implement this guidance and to the requester community. We greatly appreciate the OMB's consideration of these comments.
Jane E. Kirtley
Rebecca Daugherty |
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