Freedom of Information Act

The Freedom of Information Act (FOIA) is a Federal regulation that provides a mechanism for interested outside parties to gain access to data created as a result of Federally funded activities. When Office of Management and Budget (OMB) Circular A-110 was revised in the October 8, 1999 issue of the Federal Register, the FOIA was incorporated such that universities, formerly exempt from the Act, are now being held more accountable to the general public.

The final version of the change to OMB Circular A-110 provides that the only data that may be requested are those that are related to findings by the Federal government in developing an agency action having the force and effect of law. The agency must have publicly and officially cited the findings in conjunction with its actions. Some types of data are specifically excluded, as follows: preliminary analyses, plans for future research, peer reviews, drafts of scientific papers, and certain communications with colleagues. Data are also excluded when their release would violate personal privacy (e.g., medical or other human subject information that could reveal an individual's identity) or commercially necessary confidentiality. The revisions to OMB Circular A-110 apply to data in connection with awards made after November 8, 1999 and to continuing awards renewed after that date.

Faculty should be aware that, as a non-governmental entity, the University is not required to respond to FOIA requests made directly by private parties. Only the Federal awarding agency may require research data and, then, only if a request for data has been made to the agency. Any requests by a Federal agency for University faculty or staff to supply research data under FOIA should be brought to the attention of the Director of Research Administration, who will work with the individual faculty or staff member and the Academic Affairs Office to evaluate the request. The University's goal and only involvement in this process is to facilitate a review of the situation and inform the faculty or staff member of what obligation exists to supply the requested data while remaining compliant with the spirit of OMB Circular A-110.

The following excerpts from the October 8, 1999 Federal Register, are directly relevant to the above discussion:

.36 Intangible Property.

  1. 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.
  2. In addition, in response to a Freedom of Information Act (FOIA) request for 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, the Federal awarding agency shall request, and the recipient shall provide, with a reasonable time, the research 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 research 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 research 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)).
  3. The following definitions apply for purposes of paragraph (d) of this section:
    1. Research data is defined as the recorded factual material commonly accepted in the scientific community as necessary to validate research 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:
      1. Trade secrets, commercial information, materials necessary to be held confidential by a researcher until they are published, or similar information which is not protected under the law; and
      2. Personnel and medical information and similar information, 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. Published is defined as either when:
      1. Research findings are published in a peer-reviewed scientific or technical journal; or
      2. A Federal agency publicly and officially cites the research findings in support of an agency action that has the force and effect of law.
    3. Used by the Federal government in developing an agency action that has the force and effect of law is defined as when an agency publicly and officially cites the research findings in support of an agency action that has the force and effect of law.

Questions regarding requests made by outside parties or Federal awarding agencies under the Freedom of Information Act should be addressed to the Office of Research Administration.

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Last modified: August 30, 2007 15:01:29