Analysis of Changes to OMB Circular A-110: Extending FOIA to Federal Grantees
by Guest Blogger, 7/9/2002
Last year, as part of the FY 1999 Omnibus Appropriations bill, legislation sponsored by Sen. Richard Shelby (R-AL) was enacted that effectively subjects federal nonprofit grantees to the Freedom of Information Act (FOIA), essentially overturning a 1980 Supreme Court decision limiting FOIA to governmental agencies.
View the Original OMB Proposal(2/4/99)
View OMB Watch's Analysis of the Original OMB Proposal (2/8/99)
View OMB Watch's Comment On the Original OMB Proposal (3/31/99)
View OMB Watch's Testimony on H.R. 88, a Bill to Strike the Changes to A-110 (7/15/99)
View OMB Watch's Analysis of the Draft of the Second OMB Proposal (7/15/99)
View the Second OMB Proposal (8/11/99)
View OMB Watch's Analysis of the Second OMB Proposal (8/21/99)
View OMB Watch's Comment On the Second OMB Proposal (9/10/99)
View the Final OMB Change to Circular A-110 (11/6/99)
View OMB Watch's Analysis of the Final OMB Rule (12/1/99)
Background
Last year, as part of the FY 1999 Omnibus Appropriations bill, legislation sponsored by
Sen. Richard Shelby (R-AL) was enacted that effectively subjects federal nonprofit
grantees to the Freedom of Information Act (FOIA), essentially overturning a 1980
Supreme Court decision limiting FOIA to governmental agencies. The Shelby amendment
makes "all data" produced under a grant subject to the "procedures established under the
FOIA" and would permit the granting federal agency to impose a user fee on the requestor
equaling the incremental cost of obtaining the data. The amendment required OMB to
modify Circular A-110, "Uniform Administrative Requirements for Grants and Agreements
with Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations." As a
result, the Shelby amendment only applies to nonprofit grantees; it does not apply to
federal contractors or federal funds going to state and local governments.
Some believe that this amendment was a direct result of frustration over a fight about an
EPA regulation on clean air. The National Institutes of Health had granted funds to
Harvard University to collect and analyze data that was used by the EPA 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.
OMB published the final changes to Circular A-110 in the October 8, 1999 Federal Register
after receiving more than 12,000 comments in response to two proposed revisions to the
Circular. In under-stated fashion, OMB says that "commenters offered strongly differing
views on the" Shelby amendment. On one side, Shelby, along with Sens. Ben Nighthorse-Campbell (R-CO), Phil Gramm (R-TX), and Trent Lott (R-MS), sent a letter to OMB strongly
opposing OMB's second proposal, claiming OMB's proposal would "render the [Shelby]
provision potentially meaningless" and would be "contrary to the plain meaning of the
statute and Congress's intent in passing the law."
Others, such as the Chamber of Commerce, who represents business interests, took a
more direct approach. Their March 23, 1999 web site posted bold headlines about the
Shelby amendment: "In The Regulatory Reform Arena, There May Never Be A More
Important Issue!" The Chamber notes that extending FOIA to nonprofit grantees will allow
businesses to "challenge the agency" that develops regulatory protections. These
challenges will mean "agencies will have a much harder time imposing regulations on the
business community..." Some examples of regulations they want to target: protection
against second-hand smoke; warnings about breast implants; workplace ergonomic
standards; clean air rules; environmental justice claims; and EPA's right-to-know programs.
Another web site, junkscience.org, supported the Shelby amendment and had prepared
letters to go to OMB. Those who sent comments to OMB from the site were eligible to win
one of five awards.
On the other side, the academic and science community, led by groups such as the American
Association of Universities and the American Association for the Advancement of Science, raised
major concerns with the OMB proposals. They argued the Shelby amendment would significantly
undermine quality science, could infringe on intellectual property, and may affect the privacy of human
subjects. The nonprofit community, more generally, complained that the Shelby amendment was only
targeted at nonprofits and that there was no ability for the nonprofit grantee to seek reimbursement of
costs associated with complying with the FOIA request. The public interest community, save one or
two groups, opposed the use of FOIA for this purpose.
History of OMB's Proposals
The Shelby amendment stated "That the Director of OMB amends Section ___.36 of OMB Circular A-110 to require Federal awarding agencies to ensure that all data produced under an award will be
made available to the public through the procedures established under the Freedom of Information
Act: Provided further, That if the agency obtaining the data does solely at the request of a private
party, the agency authorize a reasonable user fee equaling the incremental cost of obtaining the
data." There was no public debate on the amendment, nor was there a hearing on the subject. It is
clear, however, that the Congress was not united on this provision, as a bill repealing it (H.R. 88) was
introduced on the first day of the next session. As of October 20, 1999, the bill had 54 co-sponsors.
On February 4, 1999, OMB published its proposed changes to Circular A-110 in the Federal Register
(see /files/files/npadv/1999/feb4a110.html). The proposal narrowed the Shelby amendment
to apply to "data relating to published research findings" produced under the grant that were used by
the government in "developing policy or rules." Unfortunately, OMB did not define any of the terms,
such as "data" or "published" and did not provide any detail on whether a grantee could request
reimbursement for the costs of providing the data or how reimbursement would occur. The trigger for
allowing a FOIA request - "used by the Federal Government in developing policy or rules" - was
extremely broad and ill-defined, and no exemptions were provided for sensitive personal or
commercial data, although the standard FOIA exemptions would be applied by the granting agency.
(For a full analysis of the February 4th proposal, see /files/files/info/1999/foia-rider.html.)
After receiving over 9,000 comments on the original proposal, OMB decided to make a second
proposal available for public comment. OMB's second proposal -- published in the August 11, 1999
Federal Register (see /files/files/npadv/1999/aug11a110.html) -- made several positive
changes to the February proposal, but did not address all of the concerns. Definitions were provided
for key terms such as "data" and "published." The FOIA trigger was further clarified, and an outline for
grantee reimbursement was included. (For a full analysis, see
/files/files/npadv/1999/a110rev2.html.) Public interest groups and organizations
representing higher education and scientists remained opposed to using FOIA as the vehicle for
making scientific information held by non-governmental entities available to the public. Additionally,
public interest groups complained that the OMB proposal was too broad and still lacked information
about cost reimbursement. At the same time, Shelby, along with business interests, such as the
Chamber of Commerce, voiced significant concern with the second OMB proposal.
OMB received roughly 3,000 comments on its second proposal and then issued a final rule on
October 8, 1999 which was very similar to the August 11th proposal.
Summary of OMB's Final Rule
The final rule modifies Circular A-110 in several ways:
- It makes "research data relating to published research findings produced under an award that were used by the Federal Government in developing an agency action that has the force and effect of law" publicly accessible under the procedures of the Freedom of Information Act. It is important to note that only data produced by nonprofit grantees, and not data from contractors or state and local governments, is covered.
- It states that in order for a grantee's data to be subject to FOIA an agency must officially cite the "research findings in support of an agency action that has the force and effect of law," or the data must be published in a peer-reviewed journal and used in the development of an agency action that has the force and effect of law.
- It allows the agency to charge the FOIA requestor a "reasonable fee equaling the full incremental cost of the agency, the recipient, and applicable subrecipients." It does not establish a procedure for grantees to request or collect this fee from the agency.
- It exempts certain data from disclosure under the definition of "research data," such as personnel and medical files, as well as "trade secrets, commercial information, materials necessary to be held confidential by a researcher until they are published, or similar information which is protected under law."