Date: March 19, 1999
From: HHS Freedom of Information Officer
Subject: Comments on OMB NPRM re A-110 Revision
To: Director, Office of Grants Management, OS/ASMB/OGAM
I believe OMB has done an admirable job in trying to make an extremely complex legal requirement administratively practical. It is by no means a denigration of their efforts to suggest a few changes or additions that I believe will assist those of us who have to implement the requirements of Pub. L. 105-277 as administrators of the Freedom of Information Act. Some of my comments are aimed simply at clarifying definitions of terms used in the NPRM.
Section (c )(2) states ". . . . In response to a . . .(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, . . . . obtain the requested data so that they can be made available to the public through procedures established under the FOIA."
1. The meaning of published research findings may lead to some confusion. A possible revision: " a . . . (FOIA) request for data relating to research findings published in a scientific journal, presented at a professional conference or symposium, or otherwise made available, by any medium, to the appropriate segment of the scientific community and/or the general public, when those findings were produced under a Federal award and were used by the Federal Government . . . ." It should be further clarified that such access shall be limited to only those data used for the specific findings "published" and not to data which may have been collected but has not yet been used to reach conclusions, e.g. if the data are being used to present a series of articles, only the data underlying the articles already published shall be available under the Freedom of Information Act.
2. The terms policy or rules should be clarified. A possible clarification is "policy, adopted and implemented by the agency, affecting a member of the public, and either published in the Federal Register or made available in the agency"s FOIA Reading Room, or final rules, properly published and made available for public comment in the Federal Register, the Federal awarding agency . . . ."
3. There are many research grants which are funded by more than one source. The FederalGovernment may be only one source of the funds used to pursue a specific research project. Therefore, only those projects for which a minimum of 51% of the funds were from Federal sources should be subject to this rule. It is important that the focus of this concept be on the funding of the project, not on its worth or the value of its findings.
4. Another issue concerns the Federal Government "obtaining" the data solely in order to respond to a FOIA request. If the Government can charge the requester "a reasonable fee equaling the full incremental cost of obtaining the data," does this mean the Government can reimburse the grantee for the cost of preparing/forwarding the data to the Government? What will be the source of these funds? Can the Government direct the requester to directly reimburse the grantee, rather than make payment through/to the granting agency? If the Government must collect this "reasonable fee," will it be allowed to keep the fee to offset its costs of obtaining the data or must the money be turned over to the Treasury Department as is the case with FOIA fees in most Federal agencies? Since it appears unlikely that the Government will be permitted to allow direct payment to the grantee, I would recommend that this specific category of fees be exempt from the requirement that FOIA fees get turned over to the Treasury Department, and that the fees be passed on to the grantee as reimbursement for its costs or be used to reimburse whatever Federal account was used to reimburse the grantee before the fees were collected from the requester. I would also recommend that these fees not be subject to the waiver provisions of the FOIA.
5. Note must be made that implementation of Pub. L. 105-277 will be extremely costly and labor intensive. Therefore, the "reasonable time" response requirement in the NPRM, rather than the FOIA mandated 20 working days, must be retained, and future budget requests should reflect this new requirement of law.
Supreme Court Justice Antonin Scalia has described the FOIA as the "Taj Mahal of unanticipated consequences." Pub. L. 105-277 may be challenging for the title.
FOI/Privacy Acts Division
Office of Public Affairs