Data Access
OMB Data Access Proposals

On February 4, 1999, OMB issued a proposed revision to Circular A-110 which stated:

Pursuant to the direction of Pub. L. 105-277, OMB hereby proposes to amend Section ___.36(c) of OMB Circular A-110 to read as follows:

(c) The Federal Government has the right to: (1) obtain, reproduce, publish or otherwise use the data first produced under an award, and (2) authorize others to receive, reproduce, publish, or otherwise use such data for Federal purposes. In addition, in response to a Freedom of Information Act (FOIA) request for data relating to published research findings produced under an award that were used by the Federal Government in developing policy or rules, the Federal awarding agency shall, within a reasonable time, obtain the requested data so that they can be made available to the public through the procedures established under the FOIA. If the Federal awarding agency obtains the data solely in response to a FOIA request, the agency may charge the requester a reasonable fee equaling the full incremental cost of obtaining the data. This fee should reflect costs incurred by the agency, the recipient, and applicable subrecipients. This fee is in addition to any fees the agency may assess under the FOIA (5 U.S.C. 552(a)(4) (A)).

In response to this proposed revision of Circular A-110, OMB received over 9,000 formal comments from researchers, university groups, industry, other stakeholders and the public. Approximately 55 percent of these comments favored implementation of P.L. 105-277 in the form of OMB's proposed revision, while 37 percent opposed the law and/or OMB's proposal.

On August 11, 1999, OMB issued a request for further comment on its proposed implementation of the data access law. The Federal Register announcement provides a general background on the Shelby legislative enactment and describes some of the many arguments from comments submitted during the policy debate. OMB quotes CRE's April 5, 1999 comments extensively in the preamble discussion of some of the more substantive comments the agency received. The notice reiterates OMB's intention to publish a final version of the rule on or before September 30, 1999.

As noted above, OMB's February 1999 proposal would have limited application of the data access law to "data relating to published research findings produced under an award that were used by the Federal Government in developing policy or rules." The new OMB notice requests public comment on three definitional concepts arising out of the above February 4 provision, plus a fourth concept relating to cost reimbursement. Each of these four concepts is summarized below.

1. The definition of "research data". OMB's new proposal emphasizes that the FOIA exemptions and other traditional protections against disclosure of confidential medical and human subject research information will continue to apply to data disclosed under the new law. OMB is also attempting 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 6 (medical and personal privacy) and 4 (trade secrets and confidential commercial information) is incorporated directly into the exclusionary provisions of proposed definition. The OMB reproposal thus would define research data as:

   the recorded factual material commonly accepted in the scientific community as necessary to validate researching findings, but not any of the following: preliminary analyses, drafts of scientific papers, plans for future research, peer reviews, or communications with colleagues. This "recorded" material excludes physical objects (e.g., laboratory samples). Research data also do not include:

   (A) 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; and

   (B) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, such as information that could be used to identify a particular person in a research study.

2. The definition of "published". OMB would define this key term as:

   either when (A) research findings are published in a peer-reviewed scientific or technical journal, or (B) a Federal agency publicly and officially cites to the research findings in support of a regulation.

   This definition of "published" clarifies somewhat the publicizing actions that would bring research findings within the scope of the new law. The definition also adds the concept that official government citation to a study would trigger FOIA disclosure requirements.

3. Scope. OMB's latest proposal significantly narrows the scope of the new data access law. Whereas, under the previous proposal, the public would have had access to published research data "used by the Federal Government in developing policy or rules", the new proposal would limit the scope of the access to such data "used by the Federal Government in developing a regulation". OMB specifically requests comment on this proposed limitation, as well as on an additional proposed restriction that would further limit the scope of the data access law to regulations that meet a $100 million impact threshold.

4. Cost Reimbursement. OMB also seeks comments on (a) estimates of potential costs to be incurred by federal agencies and their award recipients in carrying out the new data access policy and (b) the mechanisms available to recipients to charge to their awards the costs that they would incur (e.g., "direct" versus "indirect" charge, or by contract).