FW: AAASFELLOWS: Fwd:CSS Alert -- FOIA Rider

["Weiner, Ruth" <rfweine@sandia.gov>]

It may be that everyone on RADSAFE knows this, but for those who don't, this
might be of interest.

Ruth F. Weiner, Ph. D.
Sandia National Laboratories 
MS 0718, POB 5800
Albuquerque, NM 87185-0718
505-844-4791; fax 505-844-0244
rfweine@sandia.gov


-----Original Message-----
From: DWallinga@nrdc.org [mailto:DWallinga@nrdc.org] 
Sent: Monday, February 08, 1999 11:23 AM
To: aaasfellows@aaas.org
Subject: AAASFELLOWS: Fwd:CSS Alert -- FOIA Rider


The attachment below describes a science policy issue with obvious relevance
to
anyone receiving grant money from federal sources.  

I'm posting it on the bulletin board not necessarily as an appeal for
action,
but simply to raise awareness and discussion about the impact on science of
extending FOIA to scientific data obtained under federal grants, but not to
research conducted under contracts.  

-- David Wallinga, M.D.   


             Citizens for Sensible Safeguards
**************************************************************

        New Law Extends FOIA to Federal Grantees:
        OMB Revision Open to Public Comment


SUMMARY

A rider in the Fiscal Year 1999 Omnibus Appropriations bill 
could have a major impact on nonprofit organizations.  The 
rider makes "all data" produced under a grant subject to 
Freedom of Information Act (FOIA) requests from the public.  
This new requirement overturns a 1980 Supreme Court decision 
that said files held by a recipient of a federal award are 
exempt from FOIA.  The legislation would not apply to 
contractors; it would only apply to nonprofit grantees and 
subrecipients.

The appropriations rider required the Office of Management and 
Budget (OMB) to modify its Circular A-110, which establishes 
uniform requirements on federal grants and cooperative 
agreements with higher education institutions, hospitals, and 
other nonprofits.  OMB published proposed revisions to the 
Circular on February 4 (see Federal Register, Vol. 64, No. 23, 
pg. 5684) and is accepting public comments until April 5, 1999.

There seems to be widespread concern about the impact of this 
new provision, including bipartisan congressional concern.  Led
largely by Rep. George Brown (D-CA), there are discussions 
ranging from repeal of the provision to extending the 
requirements to contractors.

WHO IS COVERED?

OMB's proposed revision applies to entities covered by OMB 
Circular A-110, "Uniform Administrative Requirements for Grants
and Agreements with Institutions of Higher Education, 
Hospitals, and Other Non-Profit Organizations."  This means 
most nonprofits that receive a grant or cooperative agreement, 
or subrecipients.  Direct federal contractors are not covered.

WHAT IS COVERED?

OMB's proposed revision applies to "data relating to published 
research findings" produced under the grant that were used by 
the government in "developing policy or rules."  OMB does not 
provide definitions of terms such as "data," "research 
findings," or "policy or rules."  However, an OMB spokesperson 
said that such definitions are currently -- and may continue to
be -- determined by the grant-making agency and presumably 
conveyed through grant agreements to nonprofits.

Once a FOIA request is filed and the data is given to the 
federal agency, the agency must determine whether it is a 
"record" under FOIA and whether any of the nine FOIA exemptions
apply (see discussion below).  Records that intrude upon 
personal privacy are generally exempt from disclosure under 
FOIA.

HOW IT MIGHT WORK

The OMB proposal is quite vague on how the provision will be 
implemented.  Presumably anyone in the public can make a 
Freedom of Information Act request for research results or 
underlying data that an organization may hold "after 
publication of research findings used by" the government "in 
developing policy or rules."  The FOIA request would be 
directed to the appropriate federal agency.  The agency "shall,
within a reasonable time," obtain the requested data so that it
can be processed under the FOIA procedures of the agency.

If the agency is seeking the information from the grantee 
solely in response to a FOIA request, the agency "may" charge 
the requester a fee equaling the "incremental cost of obtaining
the data."  OMB instructs agencies that this fee should reflect
the costs to the agency, the grantee, and any 
subgrantees/contractors.  This fee is in addition to any fees 
that may be assessed under FOIA.

Although OMB clarifies this fee structure, it does not 
specifically stipulate that the grantee must be reimbursed for 
its costs or how such reimbursement would occur.  Moreover, it 
does not identify whether a grantee could compel (or even 
request) the federal agency to impose this fee on the 
requester.

The most likely way this provision would be used is to 
challenge a federal policy (e.g., food, health, worker, or 
environmental safety rules, or cost containment actions).  The 
data used by the agency in developing risk assessments, 
cost-benefit analyses, or other analytical reports could be 
obtained to refute the agency action in courts, Congress, and 
the media.

The open-ended nature of the provision, however, makes it a 
tool for other types of attacks.  In virtually any contested 
issue, this provision allows opponents to obtain new 
information.  Tobacco proponents, for example, could use this 
new FOIA tool to obtain "data" from grantees working on 
anti-smoking campaigns.  Surely, the scope of what is covered 
under "data" will be tested aggressively.

A DANGEROUS PRECEDENT

This provision represents a dangerous precedent in treating 
federal grantees as surrogates of the federal government.  
Receipt of federal grants should not require the nonprofit to 
operate as a governmental institution.  Once you cross this 
line, it allows many types of intrusions.  For example, Rep. 
David McIntosh (R-IN) unsuccessfully proposed last year to 
extend Hatch Act requirements to any recipient of federal 
funds.  And, of course, the argument could be made that since 
government employees are prohibited from lobbying during 
working hours, then nonprofit employees that receive federal 
funds also cannot lobby during working hours.

The OMB proposed revision may protect data that are not used in
developing federal policies or rules, but how will that be 
defined.  If a member of Congress reads a study on air quality 
produced under a grant and introduces a successful bill based 
on the research, was the research used to develop policy?  
Clearly the research was not funded to answer a policy 
question, but it did have an indirect impact on the 
legislation. In a more nefarious situation, would a member of 
Congress introduce legislation in order to allow a special 
interest group to file a FOIA request to obtain "data" from a 
grantee?

ANALYSIS OF CIRCULAR A-110 CHANGES

Last year's omnibus appropriations bill had a rider buried in 
it that requires OMB to modify Circular A-110,  "Uniform 
Administrative Requirements for Grants and Agreements with 
Institutions of Higher Education, Hospitals, and Other 
Non-Profit Organizations," so that "all data produced under an 
award will be made available to the public through the 
procedures established under the Freedom of Information Act."

Some believe that this amendment was a direct result of 
frustration over a fight about an EPA regulation on clean air.  

EPA had granted funds to Harvard University to collect and 
analyze data that would help the agency in determining how to 
write a rule central to the Clean Air Act.  Conservatives who 
disagreed with the EPA rule wanted the underlying data that 
Harvard had generated so they could re-analyze it and criticize
the EPA regulatory policy.  EPA publicly provided aggregated 
data used in its risk assessment and cost-benefit analysis, but
did not provide the underlying information which was retained 
by Harvard.

Senate Majority Leader Trent Lott (R-MS), Richard Shelby 
(R-AL), and Ben Nighthorse Campbell (R-CO) made floor 
statements supporting the provision and seemed to indicate that
the requirements should only apply to research data.  Lott, for
example, said the provision requires "Federal awarding agencies
to ensure that all research results, including underlying 
research data, funded by the Federal Government..." that is 
"used by the Federal Government in developing policy and rules"
are made available through FOIA.  The conference report adds, 
"The provision applies to all Federally funded research 
data..." (144 Cong. Rec S12134 October 9, 1998).

OMB was faced with difficult decisions in developing proposed 
rules to implement the provision.  Proponents said they wanted 
the rider to apply to all research "funded by the Federal 
Government," yet the rider instructs OMB to modify Circular 
A-110 only.  Circular A-110 only applies to grantees, not 
contractors. OMB can, on its own accord, modify rules affecting
contractors in order to keep the rules parallel.  However, OMB 
did not announce such parity in its proposed revision of 
Circular A-110.

Secondly, proponents of the provision claimed it was aimed at 
"research data" used "in developing policy and rules," but did 
not put such limits in the legislative language.  Instead, the 
rider applies to "data," leaving it to OMB to define the term.  

OMB did propose to limit the FOIA request to "data relating to 
published research findings produced under an award that were 
used by the Federal Government in developing policy or rules." 
OMB does not, however, define any of the key terms, such as 
"data."  An OMB spokesperson indicated that the definition of 
terms, such as "data," would be decided by each agency 
providing the grant.

A bipartisan letter signed by 23 Members of Congress was sent 
on December 17, 1998 to Jack Lew, the Director of OMB, urging 
him to "solicit input from all federal grant-awarding agencies,
and from the higher education, hospital and non-profit grant 
recipient community" before any changes to A-110 are made.  The
letter also expresses concern that Congress did not hold 
hearings on whether this change is warranted. A second letter 
has been sent by the National Academy of Sciences expressing 
similar concerns and asking that the administration support a 
bill (H.R. 88) introduced by Rep. Brown that would repeal the 
provision.

FOIA Exemptions

The Freedom of Information Act exempts eight types of records 
from being disclosed:

   1.   Specifically authorized under criteria established by 
an executive order to be kept secret in the interest of 
national defense or foreign policy and are classified as such;

   2.   Related solely to the internal personnel rules and 
practices of an agency;

   3.   Specifically exempted from disclosure by statute;

   4.   Trade secrets and commercial or financial information 
obtained from a person and privileged or confidential;

   5.   Inter-agency or intra-agency memorandums or letters 
which would not be available by law to a party other than an 
agency in litigation with the agency;

   6.   Personnel and medical files and similar files "the 
disclosure of which would constitute a clearly unwarranted 
invasion of personal privacy;"

   7.   Records or information compiled for law enforcement 
purposes when such information is expected to interfere with 
enforcement proceedings or deprive a person of a right to a 
fair trial or an impartial adjudication.

   8.   Contained in or related to examination, operating, or 
condition reports prepared by, on behalf of, or for the use of 
an agency responsible for the regulation or supervision of 
financial institutions; or

   9.   Geological and geophysical information and data, 
including maps, concerning wells.

While Exemption 6 may protect the privacy of records/data about
individuals held by nonprofit grantees, it may involve 
litigation.  For example, if an grantee does clinical trials of
small, defined populations (e.g., minority children under five 
with HIV), can the identity of the participants be recognized 
through computer matching services?  Would that constitute an 
"unwarranted invasion of personal privacy?"  Even if protected,
most human subject review panels would require researchers to 
notify subjects of the possibility that personal information 
about them might become public.  Potential subjects may be 
reluctant to give personal information if it is to become the 
property of the federal government or the public at large.  For
example, it may become harder to conduct clinical studies of 
those who use illegal substances.  Inevitably this will have an
impact of subject participation and research quality.

Some additional concerns raised by the proposed changes 
include: 

The potential for increased administrative costs to 
grantees under the new regulations. The informal data-sharing 
structure now in existence will be changed by the formal 
requirements under this revision. Covered institutions will be 
forced to set up formal procedures for collecting and 
disseminating the data, which will redirect resources from the 
funded purpose.  A university working on several different 
projects under several different grants will almost certainly 
be forced to create a centralized office to deal with the new 
regulations.

Concerns about intellectual property:  If data from a 
study can be obtained by the public before the grantee can 
publish any results, there is a disincentive for conducting 
research.  It is also unfair to the grantee that his or her 
work can be used by others before any publication of results.   

A further concern is that grantees may be forced to release 
drafts of reports before they are reviewed or published.  Even 
the definition of "published" may be open for debate, as 
abstracts of reports presented for review at scientific 
conferences are often published in literature on the 
conference, even though the presented report may not be 
finalized.

The impact on "research" that is only partially paid 
for with federal grants.  Can the federal government still 
obtain all data?

SEND YOUR COMMENTS

OMB is accepting public comments on the provision revision to 
Circular A-110 until April 5, 1999.  The comments should be 
addressed to F. James Charney, Policy Analyst, Office of 
Management and Budget, Room 6025, New Executive Office 
Building, Washington, DC 20503.

Please send a copy of your comments or examples of how you 
could be affected by the provision to Matt Carter 
<carterm@ombwatch.org>, OMB Watch, 1742 Connecticut Ave., N.W.,
Washington, D.C.  20009.


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