Data Access

CRE Analysis

6. Will the proposed OMB revision to Circular A-110 be able to protect intellectual property rights?

Comment by National Academy of Sciences

CRE Response:

FOIA offers broad protection for intellectual property under exemption 4, and CRE has written extensively on the scope of these protections. See CRE's April 5, 1999 Comments to OMB at section II.2.2.

Critics have charged that court's will hold FOIA's protections for "commercial" data inapplicable in the case of non-profit (therefore arguably not "commercial") institutions. Courts, however, look to the commercial value of the data, not to the corporate status of the data possessor, in applying the FOIA exemption. The DC Circuit, for example, has held that corporate status of the data possessor is not determinative of the character of the information. Thus, a non-profit researcher in possession of a private company's confidential commercial information will not be required to disclose that data under FOIA. See, e.g., Critical Mass Energy Project v. NRC, 830 F.2d 278, 281 (D.C. Cir. 1987), cert. denied, 113 S.Ct. 1579; Board of Trade v. CFTC, 627 F.2d 392, 405-06 (D.C. Cir. 1980). The single court case that NAS cites in its comments was decided in the absence of an OMB Circular interpreting and implementing the congressional mandate at issue here, and reconciling that mandate with the FOIA exemption.

OMB's August 11 reproposal also attempts to alleviate any concerns that the new data access requirements will impinge on intellectual property rights or threaten public-private joint research ventures. Statutory language from FOIA exemptions and 4 (trade secrets and confidential commercial information) is incorporated directly into the exclusionary provisions of proposed definition. The proposed definition of "data" also protects intellectual property rights by prohibiting disclosure of "trade secrets, commercial information, materials necessary to be held confidential by a researcher until publication of their results in a peer-reviewed journal, or information which may be copyrighted or patented."